McCamey v. TN. Dept. of Correction ( 1997 )

ROY L. McCAMEY, )
)
Petitioner/Appellant, )
) Appeal No.
) 01-A-01-9701-CH-00033
VS. )
) Davidson Chancery
) No. 95-2962-II
TENNESSEE DEPARTMENT OF )
CORRECTION, et al., )
Respondents/Appellees.
)
)
FILED
April 30, 1997
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE Cecil W. Crowson
Appellate Court Clerk
APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
HONORABLE WALTER M. KURTZ, CHANCELLOR BY INTERCHANGE
Roy L. McCamey
P. O. Box 5000
Northeast Correctional Center
Mountain City, Tennessee 37683-5000
PRO SE/ PETITIONER/APPELLANT
John Knox Walkup
Attorney General and Reporter
Patricia C. Kussmann
Assistant Attorney General
425 Fifth Avenue North
Nashville, Tennessee
ATTORNEY FOR RESPONDENTS/APPELLEES
AFFIRMED AND REMANDED
HENRY F. TODD,
PRESIDING JUDGE, MIDDLE SECTION
CONCURS:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
ROY L. McCAMEY, )
)
Petitioner/Appellant, )
) Appeal No.
) 01-A-01-9701-CH-00033
VS. )
) Davidson Chancery
) No. 95-2962-II
TENNESSEE DEPARTMENT OF )
CORRECTION, et al., )
)
Respondents/Appellees. )
OPINION
This is a suit for declaratory judgment which was dismissed by the Trial
Court for failure to state a claim for which relief can be granted. The plaintiff-appellant
presents the following issues for review:
I. Whether the appellee’s failure to give the appellant
a due process hearing prior to the movement and
increase of his release eligibility date violates the
appellant’s rights to due process of law.
II. Whether the appellee’s use of T.C.A. § 40-28-
123(b) to increase the appellant’s release eligibility date
was without authority and violates constitutional
provisions.
III. Whether the Davidson County Chancery Court
improperly denied the appellant’s Petition for Declaratory
Judgment.
I.
The Complaint
The complaint is captioned, “Declaratory Judgment.” It states:
Comes the plaintiff, Roy L. McCamey, Pro Se, and
brings this action before this Honorable Court pursuant to
the Uniform Administrative Procedures Act, T.C.A. § 4-5-
101, et seq.
Reasons stated as follows:
-2-
1. The plaintiff, Roy L. McCamey #118615 is
incarcerated at P. O. Box 5000, Northeast Correctional
Center, Mountain City, Tenn. 37683.
2. The plaintiff’s parole eligibility date has been
recalculated from 06/13/99 to 02/03/2020 by the
defendants.
3. The defendants have used their authorities
to impair the plaintiff’s legal rights to due process of law
by recalculating the plaintiff’s parole eligibility date without
a due process hearing.
4. The defendants have applied the statute
pursuant to T.C.A. § 40-28-123(b) to recalculate the
plaintiff’s parole eligibility date.
5. The plaintiff submitts [sic] the statute
pursuant to T.C.A. § 40-28-123 (b), violates constitutional
provisions under the Tennessee and United States
Constitution.
WHEREFORE; the plaintiff forever prays his parole
eligibility date be recalculated pursuant to T.C.A. § 40-35-
501(G), without any further statute’s being applied.
Section 4-5-224 is entitled “Declaratory Judgments” and reads as
follows:
(a) The legal validity or applicability of a statute,
rule or order of an agency to specified circumstances may
be determined in a suit for a declaratory judgment in the
chancery court of Davidson County, unless otherwise
specifically provided by statute, if the court finds that the
statute, rule or order, or its threatened application,
interferes with or impairs, or threatens to interfere with or
impair, the legal rights or privileges of the complainant.
The agency shall be made a party to the suit.
(b) A declaratory judgment shall not be
rendered concerning the validity or applicability of a
statute, rule or order unless the complainant has
petitioned the agency for a declaratory order and the
agency has refused to issue a declaratory order.
(c) In passing on the legal validity of a rule or order,
the court shall declare the rule or order invalid only if it
finds that it violates constitutional provisions, exceeds the
statutory authority of the agency, was adopted without
compliance with the rulemaking procedures provided for
in this chapter or otherwise violates state or federal law.
-3-
Attached to the complaint is a “Memorandum of Law in Support of
Judgment” which recites a history of plaintiff’s experiences with state corrections
authorities including the following:
On July 26, 1993, Plaintiff recieved [sic] a hearing
before the Disciplinary Board at Carter County Work
Camp, where plaintiff plead guilty to drug-possession and
was placed on punitive segregation for twenty (20) days
and was placed at a more secure institution per policy
502.01, see: Exhibit-A.
On February 21, 1995, Plaintiff was taken before a
Carter County Grand Jury where plaintiff was convicted
pursuant to T.C.A. § 39-16-201, and recieved [sic] a three
(3) year sentence to run consecutive to the fifty (50) year
sentence plaintiff is currently seeking.
On July 7, 1995, Plaintiff recieved [sic] a Tomis
Offender Sentence Letter, to which plaintiff’s Release
Eligibility Date had increased from 06/13/1999 to
02/03/2020, see: Exhibit-B.
On July 25, 1995, Plaintiff contacted Institutional
staff, requesting the show cause of the movement of the
Release Eligibility Date, see: Exhibit-C as staff responded
per policy T.C.A. § 40-28-123(b).
Plaintiff submitts [sic] the following:
As shown above, and now on record, the
defendants have increased the plaintiff’s Release
Eligibility Date pursuant to Tennessee Code Annotated
Section 40-28-123(b), Plaintiff now avers this statute was
designed for prisoner’s convicted of a felony while working
in the community, and not for the purpose of prisoner’s
convicted of a felony while incarcerated.
As records will show, plaintiff recieved [sic] a three
(3) year consecutive sentence for the offense, and the
consecutive sentence is to be calculated according to
statute.
See: Tennessee Code Annotated § 40-35-
501(G). The Release Eligibility Date
provided for herein shall be separately
calculated for each offense for which a
defendant is convicted. for consecutive
sentences, the periods of ineligibility for
release shall be calculated for each offense
and shall be added together to determine
the release eligibility date for the
consecutive sentence.
-4-
Further showing, and now on record, the plaintiff
submitts [sic] the defendants failed to notify him or any
such actions being taken against him.
...
The plaintiff submitts [sic] the Disciplinary Boards
report never recommended any movement in plaintiffs
release eligibility date per policy.
See: T.D.O.C. Policy 502.01(G)
Disposition of Disciplinary Report
(2) When the disciplinary action involves
the taking of sentence credits or the
extension of an imates [sic] RED, the
Disciplinary Board shall send the original
disciplinary report and CR-3298 . . . .
Sentence Management Services will take
the sentence credits or extend the inmates
RED, send the original back to the
institutional record office, and maintain a
copy in OSS, the inmate shall be provided
with a copy of this document.
Therefore, plaintiff submitts [sic], without notice or
a hearing concerning the movement of his Release
Eligibility Date, the defendants have improperly applied
statute T.C.A. § 40-28-123(b) by violating the provisions
pursuant to Article 1, Section 8 of the Tennessee
Constitution and the 5th and 14th Amendments of the
United States Constitution, and further the defendant’s
have improperly applied statute T.C.A. § 40-28-123(b) by
denying the plaintiff the right to confront the actions being
taken against him pursuant to the provisions set out and
secured by Article 1 Section 9 of the Tennessee
Constitution and the 6th Amendment of the United States
Constitution.
The plaintiff submitts [sic] the defendants imposing
an increase in the release eligibility date pursuant to
T.C.A. 40-28-123(b) is placing punishment on the already
determined sentence that plaintiff has been serving since
September 25, 1987, those actions impairs the provisions
of Article 1 Section 11 of the Tennessee Constitution, the
prohibition which forbids the Congress and states to enact
any ex post facto law.
...
WHEREFORE; the Plaintiff forever prays the
movement of his Release Eligibility Date be recalculated
by the defendants and in accordance to due process of
law, equal protection and applying no ex post facto laws.
-5-
The allegations of the complaint and memorandum did not constitute
grounds for granting the requested relief.
It appears that the plaintiff desires relief from the consecutive sentence
imposed by the Trial Court. The time has long since expired for any appeal from the
terms of that sentence. Tenn. R. App. P. Rules 2 and 4(a).
The complaint and memorandum fail to allege compliance with T. C. A.
§ 4-5-224(b) which states:
(b) A declaratory judgment shall not be
rendered concerning the validity or applicability of a
statute, rule or order unless the complainant has
petitioned the agency for a declaratory order and the
agency has refused to issue a declaratory order.
The complaint and memorandum seek to revise the judicial sentence, and the ruling
of the administrative agency by declaratory judgment, but fail to allege compliance
with subsection (b) of T.C.A. § 4-5-224, quoted above. L. L. Bean, Inc., v. Bracey,
Tenn. 1991, 817 S.W.2d 292.
Administrative Policies and Procedures of the Department of Correction,
Policy Nos. 505.01 and 109.61; Management Information Services Procedures
Manual, Index # V711-J detail the steps necessary for obtaining an Administrative
Declaratory Order. Until these steps have been followed and alleged in a complaint,
the courts have no authority to entertain an action against the agency for declaratory
judgment.
The judgment of the Trial Court is affirmed. Costs of this appeal are
taxed against the plaintiff appellant. The cause is remanded to the Trial Court for
necessary further procedures.
-6-
AFFIRMED AND REMANDED.
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
CONCUR:
_______________________________
SAMUEL L. LEWIS, JUDGE
_______________________________
BEN H. CANTRELL, JUDGE
-7-
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
ROY L. McCAMEY, )
)
Petitioner/Appellant, )
) Appeal No.
) 01-A-01-9701-CH-00033
VS. )
) Davidson Chancery
) No. 95-2962-II
TENNESSEE DEPARTMENT OF )
CORRECTION, et al., ) Affirmed
) and
Respondents/Appellees. ) Remanded
JUDGMENT
In accordance with the opinion of the Court filed herein, the judgment
of the Trial Court is affirmed. Judgment is rendered against Roy McCamey for costs
of this appeal for which execution may issue. The cause is remanded to the Trial
Court for necessary further proceedings.
ENTER _______________________.
_________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_________________________________
SAMUEL L. LEWIS, JUDGE
_________________________________
BEN H. CANTRELL, JUDGE