Mark W. Givler v. State of Tennessee ( 2018 )

03/29/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 4, 2017
MARK W. GIVLER v. STATE OF TENNESSEE
Appeal from the Tennessee Claims Commission
No. T20170894 William O. Shults, Commissioner
No. E2017-01517-COA-R3-CV
This case originated when the plaintiff, who was incarcerated in the Tennessee
Department of Correction facility at Mountain City, Tennessee, filed a claim against the
State of Tennessee (“the State”), alleging that medical professionals at the correctional
facility had provided him with untimely and inadequate medical care for a serious heart
condition. Finding that the plaintiff’s allegations concerned individuals who were not
employed by the State, the Claims Commission (“Commission”) initially dismissed the
claim for lack of subject matter jurisdiction. The plaintiff subsequently attempted to file
a proposed amendment naming State employees as defendants and then a second claim,
resulting in the instant action. The State filed a motion to dismiss, asserting the defense
of res judicata. Finding that the plaintiff had misnumbered his proposed amendment to
the original claim, the Commission treated the proposed amendment and second claim
together as an amended claim. Ultimately determining that the plaintiff had alleged a
health care liability action but failed to comply with the statutory prerequisites for such a
suit and that he had failed to establish the Commission’s jurisdiction over intentional or
criminal acts allegedly committed by State employees, the Commission entered a final
order dismissing the action. The plaintiff has appealed. Determining that the plaintiff
has failed to comply with Tennessee Rule of Appellate Procedure 27 and Tennessee
Court of Appeals Rule 6, we dismiss this appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which RICHARD H.
DINKINS, J., and J. STEVEN STAFFORD, P.J., W.S., joined.
Mark W. Givler, Mountain City, Tennessee, Pro Se.
Herbert H. Slatery, III, Attorney General and Reporter; Andrée Blumstein, Solicitor
General; and Pamela S. Lorch, Senior Counsel, for the appellee, State of Tennessee.
MEMORANDUM OPINION1
The plaintiff, Mark W. Givler, initially filed a complaint in January 2015 with
what was then the Tennessee Division of Claims Administration (“DCA”), which
subsequently transferred the complaint to the Commission, pursuant to Tennessee Code
Annotated § 9-8-402(c) (2012).2 Mr. Givler alleged that while incarcerated, he had
received inadequate and untimely medical care for months leading up to his eventual
hospitalization and surgical procedure for a serious heart condition in September 2015.
Upon the State’s motion to dismiss, the Commission entered an order dismissing the
initial claim on July 7, 2016, finding that the Commission did not have subject matter
jurisdiction over the claim because Mr. Givler had alleged claims of professional
negligence against medical personnel who were employees of a contractor and not
employees of the State. See Tenn. Code Ann. § 9-8-307(a)(1)(D) (2012 & Supp. 2017)
(setting forth the jurisdiction of the Commission in claims of professional malpractice
over the acts or omissions of state employees); Younger v. State, 205 S.W.3d 494, 499
(Tenn. Ct. App. 2006), perm. app. denied (Tenn. July 3, 2006) (“[T]he proper defendant
for negligence claims arising from the action of private contractors, or their employees, in
operating correctional facilities is the contractor, and not the State.”).
Mr. Givler filed the instant complaint on December 7, 2016, with the DCA, and it
was transferred to the Commission on March 7, 2017. The Commission subsequently
received Mr. Givler’s proposed amendment to the complaint on March 31, 2017. In
ultimately granting Mr. Givler’s motion to amend the complaint, the Commission
summarized Mr. Givler’s allegations and the relevant and somewhat convoluted
procedural history as follows:
The claim primarily involves Mr. Givler’s allegations that because
of negligent actions or inactions on the part of State employees, he did not
receive timely and adequate treatment for a serious heart disorder. [Mr.
Givler] alleged that because of the State’s negligence, he underwent a
complicated heart procedure[] carried out at the Johnson City Medical
1
Tennessee Court of Appeals Rule 10 provides:
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.
2
Effective May 4, 2017, the Division of Claims Administration has been renamed the Division of Claims
and Risk Management. See 2017 Tenn. Pub. Acts, Ch. 271 § 1 (S.B. 623).
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Center on September 25, 2015. Mr. Givler alleges that the whole
experience has caused him both physical and mental injuries.
The allegations dealt with here have been complicated by [Mr.
Givler] himself by the misnumbering of an amendment he attempted to
make in Claim No. T20150969 which the Commission dismissed per an
Order signed by us on July 1, 2016. The basis of that dismissal was that
allegations of healthcare liability which [Mr. Givler] made in that case were
not jurisdictionally proper before the Commission since the medical
professionals [Mr. Givler] named in that action were not State employees.
However, [Mr. Givler] candidly admits that a proposed amendment
he attempted to make in claim No. T20150969, i.e. No. T20160969, was
misnumbered, and in fact there never was and never has been a Claim No.
T20160969. In fact, Mr. Givler characterizes that numeration as creating a
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“ghost claim.” Rather he explains, his proposed amendment in Claim No.
T20160969 should have been filed in Claim No. T20150969 and
consequently, the Commission has never ruled on the allegations he
proposed to make against the following State employees at NECX
[Northeast Correctional Complex] at the time of the State’s alleged
negligence: 1) Warden Gerald McAllister; 2) Assistant Warden Todd
Wiggins; 3) Ms. Georgia Crowell, Administrator, Medical Department at
NECX; and 4) Sergeant Douthitt, Grievance Chairperson at the time. A
fourth category is denominated “et al.” but no individuals are named in that
category.
The Commission notes that our Order Dismissing Claim of July,
2016, was filed in Claim No. T20150969. However, Mr. Givler’s
misnumbering of the amendments he proposed to make in that case
confused him and even the Office of the Attorney General.
In an attempt to bring before us the allegations against the
individuals named above, Mr. Givler, on December 7, 2016, filed the
matter now before the Commission. That claim has been given the number
T20170894. The claim is directed at alleged negligent actions or inactions
committed by the State employees named above.
In response to [Mr. Givler’s] most recent filing, the State has lodged
with us a Motion to Dismiss along with a supporting Memorandum of Law.
In its Motion, the State relies primarily on the doctrine of res judicata and
contends that Mr. Givler’s most recent claim fails to allege a matter upon
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which relief can be granted, and therefore it must be dismissed under Tenn.
R. Civ. P. 12.02(6). The State argues that the facts set out in this most
recent claim mirror almost exactly the allegations made in Claim No.
T20160969 (sic). Of course, in light of the facts recited above, there never
has been a Claim No. T20160969, and what Mr. Givler was attempting to
do was amend his claim in No. T20150969.
At the same time it filed its Motion to Dismiss, the State also filed a
Response in Opposition to Motion to Amend, again based on a res judicata
argument.
Because there has been so much confusion in this case, primarily
because of an error made by [Mr. Givler] himself, the Commission will
DENY the State’s opposition to amending this claim in order that a final
resolution can be made regarding the allegations made against McAllister,
Wiggins, Crowell, and Douthitt. However, the Commission reiterates here
our holding in Claim No. T20150969 that the allegations made against
certain medical professionals who were not State employees at the time of
the underlying events still stands since we certainly do not have jurisdiction
over allegations based on the actions or inactions of those individuals under
Tenn. Code Ann. § 9-8-307(a)(1).
Upon consideration of the pleadings, including Mr. Givler’s “Motion in Response
to the State’s Motion to Dismiss” and accompanying memorandum, the Commission
dismissed Mr. Givler’s complaint in an order entered July 3, 2017. The Commission
found that, inter alia, (1) Mr. Givler had failed to fulfill the requirements for initiating a
health care liability action necessary to his allegations against Ms. Crowell’s
administration of the prison medical department, see Tenn. Code Ann. §§ 29-26-121, 29-
26-122 (2017), and (2) the Commission did not have subject matter jurisdiction over
intentional acts allegedly committed against Mr. Givler by employees of the State, see
Tenn. Code Ann. § 9-8-307(d) (“The state will not be liable for willful, malicious, or
criminal acts by state employees, or for acts on the part of state employees done for
personal gain.”); Shell v. State, 893 S.W.2d 416, 421 (Tenn. 1995) (explaining that the
Commission “does not have jurisdiction over any intentional torts”). Mr. Givler timely
appealed to this Court.
On appeal, Mr. Givler has filed a principal brief and, in response to the State’s
responsive brief, a reply brief. Each of Mr. Givler’s briefs consists of one narrative
section, divided solely by such headings as “REALITY CHECK (SUMMARY),” “HEED
THIS,” and “SO BE IT.” Mr. Givler’s only citations to the record are in his principal
brief and consist of one quote each from the Commission’s two orders of dismissal. Mr.
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Givler’s arguments are conclusory and unsupported by legal authority. In addition to
repeating the allegations of his complaints, Mr. Givler asserts his belief that the entire
judicial system is “corrupt.”
We recognize that Mr. Givler is a pro se litigant and respect his decision to
proceed self-represented. With regard to self-represented litigants, this Court has
explained that “[p]ro se litigants who invoke the complex and sometimes technical
procedures of the courts assume a very heavy burden.” Irvin v. City of Clarksville, 767
S.W.2d 649, 652 (Tenn. Ct. App. 1988), perm. app. denied (Tenn. Jan. 3, 1989). Parties
proceeding without benefit of counsel are “entitled to fair and equal treatment by the
courts,” but we “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 (Tenn. Ct. App. 2003). This Court must “be
mindful of the boundary between fairness to a pro se litigant and unfairness to the pro se
litigant’s adversary.” Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003), perm.
app. denied (Tenn. Jan. 26, 2004).
Mr. Givler’s appellate briefs filed with this Court fail to comply with Tennessee
Rule of Appellate Procedure 27 or Tennessee Court of Appeals Rule 6. Tennessee Rule
of Appellate Procedure 27 states in pertinent part:
(a) Brief of the Appellant. The brief of the appellant shall contain under
appropriate headings and in the order here indicated:
(1) A table of contents, with references to the pages in the brief;
(2) A table of authorities, including cases (alphabetically
arranged), statutes and other authorities cited, with references
to the pages in the brief where they are cited;
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(4) A statement of the issues presented for review;
(5) A statement of the case, indicating briefly the nature of the
case, the course of proceedings, and its disposition in the
court below;
(6) A statement of facts, setting forth the facts relevant to the
issues presented for review with appropriate references to the
record;
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(7) An argument, which may be preceded by a summary of
argument, setting forth:
(A) the contentions of the appellant with respect to the
issues presented, and the reasons therefor, including
the reasons why the contentions require appellate
relief, with citations to the authorities and appropriate
references to the record (which may be quoted
verbatim) relied on; and
(B) for each issue, a concise statement of the applicable
standard of review (which may appear in the
discussion of the issue or under a separate heading
placed before the discussion of the issues);
(8) A short conclusion, stating the precise relief sought.
Similarly, Tennessee Court of Appeals Rule 6 provides in pertinent part:
(a) Written argument in regard to each issue on appeal shall contain:
(1) A statement by the appellant of the alleged erroneous action
of the trial court which raises the issue and a statement by the
appellee of any action of the trial court which is relied upon
to correct the alleged error, with citation to the record where
the erroneous or corrective action is recorded.
(2) 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.
(3) A statement reciting wherein appellant was prejudiced by
such alleged error, with citations to the record showing where
the resultant prejudice is recorded.
(4) A statement of each determinative fact relied upon with
citation to the record where evidence of each such fact may
be found.
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(b) No complaint of or reliance upon action by the trial court will be
considered on appeal unless the argument contains a specific
reference to the page or pages of the record where such action is
recorded. No assertion of fact will be considered on appeal unless
the argument contains a reference to the page or pages of the record
where evidence of such fact is recorded.
Taking into account and respecting Mr. Givler’s pro se status, we still must
conclude that his appellate briefs contain numerous significant deficiencies with regard to
the above-listed requirements. Mr. Givler’s briefs lack a table of contents, table of
authorities, statement of the issues, and statement of the case as required by Tennessee
Rule of Appellate Procedure 27(a). Importantly, other than the two quotations from the
Commission’s orders, Mr. Givler’s appellate briefs contain no citations or references to
the record on appeal and no citations to any legal authority to support his factual
allegations and arguments. See Tenn. R. App. P. 27; Tenn. Ct. App. R. 6. “Courts have
routinely held that the failure to make appropriate references to the record and to cite
relevant authority in the argument section of the brief as required by Rule 27(a)(7)
constitutes a waiver of the issue.” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App.
2000), perm. app. denied (Tenn. Feb. 26, 2001). Moreover, Mr. Givler’s appellate briefs
are replete with unsubstantiated allegations against individuals, the State Attorney
General’s Office, the State as an entity, the Commission, and the entire judicial system.
As this Court has explained:
For good cause, we may suspend the requirements or provisions of
these rules in a given case. However, the Supreme Court has held that it
will not find this Court in error for not considering a case on its merits
where the plaintiff did not comply with the rules of this Court. Crowe v.
Birmingham & N.W. Ry. Co., 156 Tenn. 349, 1 S.W.2d 781 (1928).
Plaintiff’s failure to comply with the Rules of Appellate Procedure and the
rules of this Court waives the issues for review. See Duchow v. Whalen,
872 S.W.2d 692 (Tenn. Ct. App. 1993); see also Lucas v. Lucas, 1998 WL
136553 (Tenn. Ct. App. March 27, 1998).
Bean, 40 S.W.3d at 54-55.
In the instant case, the deficiencies within Mr. Givler’s appellate briefs are so
substantial that it is difficult for us to determine his legal argument and separate the
relevant facts from his conclusory assertions. As this Court determined in Murray v.
Miracle, 457 S.W.3d 399, 402 (Tenn. Ct. App. 2014), perm. app. denied (Tenn. Feb. 19,
2015):
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We are not unmindful of Plaintiffs’ pro se status and have attempted
to give them the benefit of the doubt whenever possible. Nevertheless, we
cannot write Plaintiffs’ brief for them, and we are not able to create
arguments or issues where none otherwise are set forth. Likewise, we will
not dig through the record in an attempt to discover arguments or issues
that Plaintiffs may have made had they been represented by counsel. To do
so would place Defendants in a distinct and likely insurmountable and
unfair disadvantage as this Court would be acting as Plaintiffs’ attorney.
Similarly, we cannot unfairly disadvantage the defendant in this matter by serving as Mr.
Givler’s attorney. See id.; Young, 130 S.W.3d at 63. Therefore, Mr. Givler’s issues,
insofar as they are presented on appeal, are deemed waived. See Bean, 40 S.W.3d at 54-
55.
Conclusion
For the reasons stated above, the appeal of this matter is dismissed. The case is
remanded to the Commission for collection of costs assessed below. Costs on appeal are
assessed to the appellant, Mark W. Givler.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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