Howse v. Johnson ( 2000 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
REV. CURLEY HOWSE v. MICKEY JOHNSON, ET AL
Direct Appeal from the Chancery Court for Davidson County
No. 89-3213-III; The Honorable Ellen Hobbs Lyle, Chancellor
No. M1998-00513-COA-R3-CV - Decided June 13, 2000
This appeal arises from an action brought by Plaintiff-Howse (“Prisoner Howse”) against Defendant-
Johnson and the Tennessee Department of Correction (hereinafter collectively referred to as
“Defendants”) for various violations of his civil rights. Defendants’ motions for dismissal and
summary judgement were granted by the trial court. Howse appeals both the dismissal of his case
and the subsequent grant of summary judgment in favor of Defendants.
Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
HIGHERS , J., delivered the opinion of the court, in which FARMER , J., and LILLARD , J., joined.
Rev. Curley Howse, Only, TN, pro se
Paul G. Summers, Attorney General & Reporter, Michael E. Moore, Solicitor General, and Rae
Oliver, Assistant Attorney General, Nashville, for Appellees, Mickey Johnson, et al
OPINION
In November 1989, Prisoner Howse filed a petition against Defendants in the Davidson
County Chancery Court, alleging that both he and Charles Robinson (“Prisoner Robinson”) had been
assaulted and subjected to sexual misconduct by prison employees and other inmates and that the
behavior was both condoned and encouraged by prison officials. At the time the lawsuit was
initiated, Prisoner and his co-plaintiff were inmates at the DeBerry Correctional Facility in
Nashville, Tennessee.1 Following motions by the individual Defendants, the court granted an
extension of time to answer until January 1990. Defendants filed a motion to dismiss or in the
alternative a motion for summary judgment on January 24, 1990. An attachment to this motion
included a letter written by Prisoner Robinson claiming that he had been coerced into filing suit by
Prisoner Howse. Prisoner Robinson was transferred to a different prison shortly thereafter.
Prisoner Howse filed more than thirty various motions and miscellaneous filings between
the initiation of the lawsuit and November of 1990. Among these filings were several motions
1
Prisoner H owse is now housed at the Turney C enter facility.
asking for relief from alleged retaliatory actions by Defendants, a motion for appointment of counsel,
and a motion for a jury trial and requesting a hearing.
On November 7, 1990, Defendants filed a motion regarding the numerous filings of Prisoner
Howse. Defendants requested that Howse’s motions be denied for failure to state a claim or
dismissed for lack of clarity. Later that same month, the trial court entered an order referring the
motions in the case to a Clerk and Master. The report of the Master was entered on May 1, 1992, and
approved by the trial court pending objection.2
According to the recommendations made in the Master’s report, the majority of the motions
filed by Prisoner Howse were dismissed or denied. However, Defendants were required to respond
to the following: the alleged assault of Howse and the subsequently preventing Howse from filing
incident reports of the assault; Howse’s claims that he received excessive administrative or punitive
segregation; Howse’s claim that guards allowed him to be assaulted by another inmate in their
presence without protecting him; and that a guard used the prison “shakedown” policy to make
homosexual contact with Howse. Thereafter Prisoner Howse filed three motions for default judgment
against Defendants.
On September 24, 1992, Defendants filed an answer addressing Prisoner Howse’s
allegations.3 Defendants denied both Howse’s claim that he had been assaulted by guards and his
claim that the guards did not protect him from assaults by other inmates. Defendants also denied
Howse’s allegations of homosexual behavior by the guards. On October 20, 1992, the trial court
denied Prisoner Howse’s motions for default judgment.
The Second Master’s report was filed on February 25, 1995. The report recommended that
Defendants’ motion for partial summary judgment be granted as to all charges alleged by Prisoner
Howse, except the charges of assault and homosexual assault. Although Prisoner Howse filed
objections to the report, the trial court found that the objections were without merit and adopted the
report’s recommendations. Defendants moved for summary judgment on the remaining claims.
Prisoner Howse moved for summary judgment thereafter. The trial court granted summary judgment
in favor of Defendants on June 22, 1998. Prisoner Howse appeals.
On appeal, Prisoner Howse asserts that the trial court erred in its treatment of him as a pro
se plaintiff. Howse asserts that the trial court erred in failing to grant his motion for default
judgment. He also asserts that the trial court erred in dismissing his retaliation claim. In addition,
Prisoner Howse claims that the trial court erred in granting Defendants’ motion for summary
2
During the interve ning pe riod, Prison er How se filed mo re than tw enty add itional mo tions.
3
Defenda nt’s answer filed on September 24, 1992, m ade referen ce to a motion for partial summary judgment
that was filed at the same time. Although this motion was addressed in the Second Master’s report, the motion itself does
not appear in th e record . It is possible tha t Defenda nts were referring to a previous motion for summary judgment filed
on January 24, 1990.
2
judgment.4
Analysis
Pro Se Litigant
As a preliminary concern, we find it necessary to address Prisoner Howse’s request for
appointed counsel and his position as a pro se litigant. We first turn to his request for appointed
counsel. The trial court was not obligated to grant Prisoner Howse’s request for counsel because
there is no absolute right to counsel in a civil trial. Memphis Bd. of Realtors v. Cohen, 786 S.W.2d
951, at 953 (Tenn. Ct. App. 1989) citing Barish v. Metropolitan Government, 627 S.W. 2d 953(Tenn. Ct. App. 1981).5
Prisoner Howse represented himself at both the trial court stage and on appeal. While
litigants who proceed pro se are entitled to fair and equal treatment, "they must follow the same
procedural and substantive law as the represented party." Irvin v. City of Clarksville, 767 S.W.2d
649, 652 (Tenn. Ct. App.1988). Indeed, a pro se litigant requires even greater attention than one
represented by counsel. The trial judge must accommodate the pro se litigant's lack of legal
knowledge without giving the pro se litigant an unfair advantage because the litigant represents
himself. Id. From our reading of the record, it appears that the trial court made every available
concession required to accommodate Prisoner Howse’s pro se status despite Howse’s failure to
clearly and concisely state actionable claims.6 In addition, we find it appropriate to mention Prisoner
4
Prisoner Howse a lso asserts that the trial judge violated the law and “judicial ethics Rule 10 Code of Judicial
Condu ct” by granting D efendant’s motion to d ismiss. In addition, Howse claims that the dismissal grossly prejudiced
his case. This issue is without merit and will not be addressed. See McCay v. Mitchell , 463 S.W.2d 710 (Tenn. Ct. App.
1970) ( a general assignment of error is too vague and will not be considered by the Court of Appeals).
5
Due to the u nusually long p endency o f this matter in the co urt below, we find it appro priate to note that no
right to a speedy trial is triggered in a civil trial. Irvin v. C ity of Clarksv ille, 767 S.W.2d 649, at 654 (Tenn. Ct. App.
1988).
6
After our review of the numerous filings made by Prisoner Howse, we are unable to find a single citation to
any legal basis for his claims. Howse repeatedly stated that his civil rights are being violated, but he fails to support these
allegations with any authority. Howse does make mention of numerous violations of “God ’s law” in an attach ment to
his initial complaint as follows:
“Important message from God: Tn. Corr. Dept. and DeBerry officials let me remind you that God, has on tapes and films
of all the abusivenes s you officials are c onducting and will bring yo u into questio n shortly. Remember Comm. Reynolds
and Little, etc., the Opthamological Universal Cosmic Conscious Eyes of Our Supreme Creator, God, watches th e
geological earth and geograp hical universe and M ilky-Way galaxies. T.D.O.C. and D.C.I. authorities read II Chronicles
16:9, also God , said tell commissioner and wardens etc. are symbolic to pharaoh also all prisoner warden pharaoh’s army
is employee s.”
While the court certainly respects Prisoner Howse’s re liance on “G od’s law,” it is neither binding nor persuasive
authority in the Tennessee Co urt of Appeals.
3
Howse’s failure to provide any citations to the record or legal authority on appeal.7 While this court
can suspend or relax the rules of appellate procedure in order to afford a pro se litigant a hearing on
the merits, we are not under a duty to minutely search a voluminous record to verify unsupported
allegations in a brief. Alexander v. Tennessee Farmers Mut. Ins. Co., 905 S.W.2d 177 (Tenn. Ct.
App. 1995). With this in mind, we now turn to the remaining issues raised on appeal.
Default Judgment
Prisoner Howse asserts that the trial court erred in failing to grant his numerous motions for
default judgment. Pursuant to Rule 55.01 of the Tennessee Rules of Civil Procedure, default
judgment is appropriate when a party fails to plead or otherwise respond to a claim of relief by
another party.8 In addition, Rule 55.01 of the Tennessee Rules of Civil Procedure provides: “No
judgment by default shall be entered against the State of Tennessee or any officer or agency thereof
unless the claimant establishes the claim or right to relief by evidence satisfactory to the court.”
Prisoner Howse failed to met the burden for a grant of default judgment in this case. Defendants
filed an answer, a motion for summary judgment and a motion to dismiss, as well as several other
motions. The filing of either a motion for summary judgment or an answer is sufficient to preclude
default judgment. Creed v. Valentine, 967 S.W.2d 325 (Tenn.Ct. App. 1997). Therefore, the trial
court did not err in refusing to grant Prisoner Howse’s motion for default judgment.
Retaliation Claim
Prisoner Howse asserts that the trial court erred in dismissing his retaliation claim. In
particular, Howse claims that his transfer from one facility to another was a result of his suit.
Additionally, Howse claims that prison personnel censored his mail and stole his postage stamps.
Although Howse fails to provide the legal basis for this claim, this court assumes that he was
attempting to establish a retaliation claim pursuant to 42 U.S.C. §1983.
In establishing a retaliation claim under § 1983, a prisoner plaintiff’s burden is different from
that of a non-prisoner plaintiff. A prisoner plaintiff must show: (1) that he engaged in conduct
protected by the First Amendment; (2) a chronology of events from which retaliation may reasonably
be inferred; (3) that a sufficiently adverse prison action was taken against him and that such an action
would deter a person of “reasonable firmness” from continuing the protected conduct; and (4) a
causal connection between the conduct and the adverse action. See Thaddeus-X v. Blatter, 175 F.3d
378, 394 (6th Cir. 1999); Anderson v. Sundquist, 1 F.Supp. 2d 828, 832-833 (W.D. Tenn. 1998).
Although Prisoner Howse’s initiation of a civil rights action qualifies as conduct protected
by the First Amendment, he fails to meet the remaining factors stated above. From our review of
7
Prisoner Howse’s filings in this case are all hand-written, with no citations to the record or to any legal
authority. See R ule 13 of T ENN. R. A PP. P.
8
Rule 55.01 of the T ENN. R. C IV. P. provides in relevant part: “When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is ma de to
appear b y affidav it or otherw ise, judgm ent by d efault ma y be ente red...”
4
the record, it seems that the activities Howse initially complained of were occurring prior to
commencement of this suit. In addition, Prisoner Howse’s transfers to different facilities and the
alleged theft of his stamps do not constitute “an egregious abuse of governmental power.” Issaq v.
Compton, 900 F.Supp. 935, 940 (W.D. Tenn. 1995). Finally, Howse failed to provide sufficient
evidence of a causal connection between the initiation of his suit and subsequent acts by the prison
officials. Accordingly, we find that the trial court did not err in dismissing Prisoner Howse’s
retaliation claim.
Summary Judgment
As a final issue, Prisoner Howse alleges that the trial court erred in granting summary
judgment to Defendants. At the time Defendants filed their final motion for summary judgment, the
only undisposed of claims were those involving assault and homosexual assault. In granting
Defendants’ motion, the court below held that Prisoner Howse had failed to place specified wrongs
into issue or to establish a genuine issue of material fact. Based on the following, we agree with the
holding of the trial court.
The standards governing our review of a summary judgment motion are well settled. Our
inquiry involves purely a question of law; therefore, we review the record without a presumption
of correctness to determine whether the absence of genuine and material factual issues entitle the
movant to judgment as a matter of law. Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997); Byrd
v. Hall, 847 S.W.2d 208, 210 (Tenn.1993); TENN . R. CIV . P. 56.03. Our primary inquiry is whether
there are any genuine issues of material fact. It is only after a finding that no material facts are in
dispute that the movant must either affirmatively negate an essential element of the non-movant's
claim or conclusively establish an affirmative defense. Robinson, 952 S.W.2d at 426; Byrd, 847
S.W.2d at 215, n. 5. Id. If the movant successfully negates a claimed basis for the suit, the
non-movant may no longer simply rely upon the pleadings, but must then establish the existence of
the essential elements of the claim or the non-existence of the defense. Finister v. Humboldt General
Hosp., Inc., 970 S.W.2d 435, 437-438 (Tenn. 1998).
Under the standard stated above, it is apparent that Defendants met the requirements to obtain
summary judgment against Prisoner Howse. Howse was unable to raise a genuine issue of material
fact based on his failure to state specific dates or places of the alleged assaults. Once Defendants’
disputed Howse’s claims by sworn affidavit, Howse failed to establish the essential elements of the
claim. Therefore, Howse failed to meet his burden to prevent entry of summary judgment in favor
of Defendants. Accordingly, the trial court did not err.
Conclusion
Based upon the foregoing, the judgment of the trial court is hereby affirmed. Costs of the
appeal are assessed to appellant, Howse, for which execution may issue if necessary.
5