Daryl K. Burford v. Tennessee Department of Correction

07/09/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 3, 2021
DARYL K. BURFORD v.
TENNESSEE DEPARTMENT OF CORRECTION ET AL.
Appeal from the Chancery Court for Davidson County
No. 19-1502-II Anne C. Martin, Chancellor
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No. M2020-00575-COA-R3-CV
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The petitioner, a state prison inmate, appeals the trial court’s dismissal of his petition for a
declaratory judgment, in which he alleged that the respondents, Tennessee Department of
Correction (“TDOC”); TDOC Sentence Management; TDOC Commissioner Tony Parker;
and CoreCivic, Inc., Records Officials (“CoreCivic”) (collectively, “Respondents”),
miscalculated his release eligibility date and sentence expiration date. The trial court
dismissed the petition upon finding that the petitioner had failed to comply with the court’s
two orders notifying the petitioner that his case would be dismissed if he did not pay the
initial partial filing fee required under Tennessee Code Annotated § 41-21-807, file an
affidavit of indigency, and submit copies of his petition and summons for each respondent
with the court clerk. Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and KENNY W. ARMSTRONG, JJ., joined.
Daryl K. Burford, Hartsville, Tennessee, Pro Se.
Herbert H. Slatery, III, Attorney General and Reporter, and Erin A. Shackelford, Assistant
Attorney General, for the appellees, Tennessee Department of Correction; Tony Parker,
TDOC Commissioner; TDOC Sentence Management; and CoreCivic, Inc.
OPINION
I. Factual and Procedural Background
The appellant, Daryl K. Burford, an inmate proceeding without assistance of
counsel, filed a petition for declaratory judgment (“the Petition”) in the Davidson County
Chancery Court (“trial court”) on December 13, 2019, alleging that “TDOC Sentence
Management and CoreCivic officials” had miscalculated his release eligibility date and
sentence expiration date. In the Petition, Mr. Burford further averred that TDOC and
CoreCivic’s failure to recalculate and reduce his release eligibility date and sentence
expiration date “interferes with, threatens to interfere with and impairs the legal rights and
privileges of this petitioner to earn sentence credits.” Mr. Burford also claimed that these
failures amounted to a violation of “Constitutional provisions” and that TDOC and
CoreCivic had exceeded their statutory authority.
Mr. Burford attached to the Petition several exhibits in support of his claim,
including a May 3, 2019 judgment entered by the Davidson County Criminal Court
(“criminal court”), reflecting Mr. Burford’s sentence as ten years in the custody of TDOC
with release eligibility after service of 45% of his sentence. Likewise, Mr. Burford attached
a “Criminal Information Plea Agreement Form,” which indicated Mr. Burford’s agreement
to a ten-year sentence with 45% release eligibility. He also attached a Tennessee Offender
Management Information System (“TOMIS”) “Offender Sentence Letter,” which listed a
sentence effective date of October 6, 2017; release eligibility date of January 27, 2025; and
a sentence expiration date of March 26, 2027. The notation “Incorrect[,] shows 10 at 85%”
was handwritten on the “TOMIS Offender Sentence Letter.”
The Petition additionally included exhibits reflecting Mr. Burford’s previous efforts
to resolve his sentencing issue with TDOC directly. In a July 19, 2019 letter to TDOC
Sentence Management, Mr. Burford requested that TDOC recalculate his release eligibility
date. Mr. Burford, contrasting the release eligibility reflected on the May 3, 2019 judgment
with the release eligibility date listed on the “TOMIS Offender Sentence Letter,” claimed
that TDOC miscalculated his sentence as “ten[ ](10) at a range between 65 and 85%,”
whereas the criminal court had ordered him to serve a ten-year sentence at 45% release
eligibility. In a September 19, 2019 letter to TDOC Commissioner Parker, styled as a
“Petition for Declaratory Order,” Mr. Burford contended that TDOC “arbitrarily
authoriz[ed], allow[ed] or impl[ied] a delegation of authority or responsibility of the
commissioner to [CoreCivic]’s[] Prison Contractors Trousdale Turner C.C., for authority
to manage [his] sentence calculations, which is in violation of the Private Prison
Contracting Act . . . .” Mr. Burford further requested:
[T]his agency to issue this Declaratory Order for TDOC Sentence
Management and [CoreCivic] officials to re-calculate my release and
expiration eligibility dates so they can reflect the ten (10) at forty-five (45%)
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which the Court imposed, because the increase in my release and expiration
dates to eighty-five (85%) and or anything other than the imposed forty-five
(45%) are clearly and convincingly in conflict with the evidence of the
attached Exhibits from the Davidson Co. Criminal Court, and as a matter of
fact and law, these errors should be rectified accordingly.
TDOC’s Office of General Counsel responded to Mr. Burford’s complaint in a
November 11, 2019 letter, which was also attached to the Petition as an exhibit. In its
letter, TDOC redirected Mr. Burford’s complaint to the courts, stating: “Any issue you
may have with your judgment orders must be addressed with the court of jurisdiction.” In
addition, TDOC stated that it had obeyed the criminal court’s judgment in carrying out Mr.
Burford’s sentence. The correspondence outlined three cases in which Mr. Burford had
been sentenced, including the sentence that is the subject of the Petition. According to the
letter, “[t]he judgment order in case # 2019I134 shows the release eligibility range on your
10[-] year sentence is 45% and the Offender Management System (OMS) shows this, as of
the date of this letter.” Directly below this statement is a note handwritten, apparently by
Mr. Burford, stating, “shown consecutive at 85%.”
In addition to the Petition, Mr. Burford filed an inmate affidavit and certified copy
of his inmate trust fund account statement as required under Tennessee Code Annotated §§
41-21-805 and -807. However, as determined by the trial court in an order entered on
December 18, 2019, Mr. Burford failed to meet several of the filing requirements outlined
in the Tennessee Prisoner Litigation Reform Act, codified at Tennessee Code Annotated §
41-21-801 (2019), et seq. In its order, the trial court noted that Mr. Burford had failed to
submit an affidavit of indigency, a copy of the Petition for each respondent, summons in
duplicate for each respondent, and a partial payment of the filing fee in the amount of
$11.15. The trial court afforded Mr. Burford thirty days to comply with the trial court’s
order, provided him with the required forms, and instructed Mr. Burford that failure to
comply would result in the dismissal of his case without prejudice.
On January 9, 2020, Mr. Burford responded to the trial court’s order through a filing,
asserting that he had forwarded summonses, along with the inmate affidavit and the
Petition, to Commissioner Parker, “Sentence Management Mrs. Wiseman, CoreCivic
Warden Washburn, and [CoreCivic] Records Mrs. Warren.” Mr. Burford also stated that
he had “agreed to the monthly payment plan of $11.15, if not declared indigent.” However,
he did not clarify with whom this agreement was made. Although Mr. Burford attached to
his response another copy of the inmate affidavit that he had filed previously with the
Petition, he did not attach an affidavit of indigency.
The trial court issued another order on February 14, 2020, noting that in violation
of the court’s previous order, Mr. Burford still had failed to submit the necessary
documents and had not paid the partial filing fee. The trial court accordingly allowed Mr.
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Burford an additional thirty days to file the documents and pay the partial filing fee, again
indicating that failure to do so would result in the dismissal of his case.
CoreCivic filed a motion to dismiss on January 30, 2020, alleging that Mr. Burford
had failed to state a claim upon which relief could be granted, pursuant to Tennessee Rule
of Civil Procedure 12.02(6), because CoreCivic lacked authority to determine release
eligibility and sentence expiration dates. On February 20, 2020, Commissioner Parker
filed a motion for an extension of time to file a response in order to “investigate the petition
allegations, acquire needed documents and information to properly answer the petition, and
research the propriety of a motion to dismiss.” On March 4, 2020, Mr. Burford filed a
“Motion to Amend/Response,” in which he objected to CoreCivic’s motion to dismiss and
requested that the trial court conduct an evidentiary hearing. However, Mr. Burford neither
attached any of the documents that the trial court had referenced nor provided any
explanation as to why he could not submit the necessary documents or pay the partial filing
fee.
On the basis of Mr. Burford’s failure to comply with the trial court’s December 18,
2019 and February 14, 2020 orders, the trial court issued an order on March 17, 2020,
dismissing the Petition. On April 9, 2020, Mr. Burford filed a post-judgment motion
captioned as a “Motion to Re-Open/Re-Hear and or Notice of Appeal,” in which he asserted
that Commissioner Parker had received the Petition and summons. In support of his
assertion, Mr. Burford cited Commissioner Parker’s motion for an extension of time to file
a response, which had stated: “On or about January 21, 2020, service of Plaintiff’s
summons and complaint were accepted on behalf of Commissioner Parker in his official
capacity only.” Mr. Burford also claimed that “as of March 28, 2020, [he had] not received
any funds/income due to the lock-down-restricted movement,” but that he had submitted
“an agreement plan to deduct the monthly [fees][], which was due to start January 15,[ ]
2020.” Mr. Burford also implied that he had been unable to provide additional copies of
the Petition for each respondent due to the COVID-19 pandemic, stating, “as for the
additional copies of complaint for each named Respondent[], again, due to lock-down-
restricted movement, limited access to the prison library, time[,] materials, and copies, this
Petitioner as well as others here, has been impeded by delayed mail service[.]”
In an apparent response to the trial court’s finding that Mr. Burford had never filed
an affidavit of indigency, Mr. Burford noted that he had filed the inmate affidavit pursuant
to Tennessee Code Annotated § 41-21-805. We emphasize, however, that this is not the
affidavit of indigency referenced by the trial court’s orders. Notwithstanding, Mr. Burford
averred that he had submitted “everything requested[]/ORDERED by [the trial court] to
the best of his knowledge, truth and ability per T.C.A. 41-21-805” and requested that the
trial court “RE-Open and or RE-Hear” the Petition with “full consideration of the substance
of the merits of the petition, rather than the form of terminology of this Pro se litigant’s
papers . . . .”
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On April 9, 2020, Mr. Burford filed an identical “Motion to Re-Open/Re-Hear and
or Notice of Appeal” with this Court to initiate his appeal. The trial court subsequently
entered an order on April 30, 2020, declining to consider Mr. Burford’s post-judgment
motion due to his pending appeal. The trial court determined that the matter would remain
closed in the trial court “until and unless it receive[d] instructions from the Court of
Appeals otherwise.” In turn, this Court entered an order on September 23, 2020,
determining that Mr. Burford’s appeal was premature because the trial court had not
entered an order disposing of Mr. Burford’s post-judgment motion, which this Court
considered to be a Tennessee Rule of Civil Procedure Rule 59 motion to alter or amend the
judgment. The trial court thereafter entered an order on December 23, 2020,
acknowledging that “payments were subsequently made towards [Mr. Burford’s] filing
fee” but finding that Mr. Burford had never submitted an affidavit of indigency and that
“summonses were never issued by the Office of the Clerk & Master as required under Rule
4 of the Tennessee Rules of Civil Procedure.” The trial court denied Mr. Burford’s motion
while noting that Mr. Burford “did not explain why he is not required to abide by the above-
referenced rules, statutes, and orders of this Court.” This appeal followed.
II. Issues Presented
Mr. Burford has raised the following issues on appeal, which we have restated
slightly as follows:
1. Whether TDOC Commissioner/Sentence Management has failed to
recalculate Mr. Burford’s sentence in Case No: 2019-I-134 to reflect
his proper release and expiration eligibility dates.
2. Whether TDOC Commissioner/Sentence Management continues to
deny Mr. Burford’s legal and binding release and expiration eligibility
dates, per the criminal court’s judgment and plea agreement
documents.
3. Whether the purported failure to recalculate and reduce Mr. Burford’s
release and expiration eligibility dates threatens, interferes with and
impairs the legal rights of the judgment and plea agreement rights and
privileges.
Respondents have framed the substantive issue, slightly restated, as follows:
4. Whether the trial court abused its discretion when it dismissed the
Petition based on Mr. Burford’s failure to comply with the trial court’s
orders directing him to follow the requirements of Tennessee Rule of
Civil Procedure 4.01 and Tennessee Code Annotated § 41-21-801, et
seq.
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In addition, Respondents have raised the following procedural issue, which we have
likewise similarly restated:
5. Whether Mr. Burford has waived consideration of the merits of this
appeal through failure to comply with Tennessee Rule of Appellate
Procedure 27.
We have concluded that the substantive issue framed by TDOC is the dispositive issue on
appeal.
III. Standard of Review
Inasmuch as the trial court dismissed the Petition sua sponte based on Mr. Burford’s
failure to comply with the court’s two previous orders, it appears that the trial court
dismissed the Petition pursuant to Tennessee Rule of Civil Procedure 41.02(1), which
provides:
Involuntary Dismissal—Effect Thereof.
(1) For failure of the plaintiff to prosecute or to comply with these rules
or any order of court, a defendant may move for dismissal of an action
or of any claim against the defendant.
Although defendants are specifically authorized to move for dismissal pursuant to Rule
41.02(1), our Supreme Court has held that “a trial court may under certain circumstances
and upon adequate grounds therefor, Sua sponte order the involuntary dismissal of an
action.” Harris v. Baptist Mem’l Hosp., 574 S.W.2d 730, 731 (Tenn. 1978).
This Court recognizes that trial courts “must be able to control their dockets and that
to do so, they must have available the most severe spectrum of sanctions not merely to
penalize those whose conduct warrants sanctions but also to deter others who might be
tempted to engage in similar conduct if the sanction did not exist.” Mfrs. Consolidation
Serv., Inc. v. Rodell, 42 S.W.3d 846, 864 (Tenn. Ct. App. 2000) (quoting Kotil v. Hydra-
Sports, Inc., No. 01A01-9305-CV-00200, 1994 WL 535542, at *3 (Tenn. Ct. App. Oct. 5,
1994)); see also Hodges v. Tenn. Attorney Gen., 43 S.W.3d 918, 921 (Tenn. Ct. App. 2000)
(“Trial courts possess inherent, common-law authority to control their dockets and the
proceedings in their courts. Their authority is quite broad and includes the express
authority to dismiss cases for failure to prosecute or to comply with the Tennessee Rules
of Civil Procedure or the orders of the court.”). As such, a trial court’s decision to dismiss
a case for failure to comply with its orders is reviewed for abuse of discretion. Mfrs.
Consolidation Serv., 42 S.W.3d at 864.
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Under the abuse of discretion standard of review, this Court will “second-guess a
trial court only when it has acted unreasonably, arbitrarily, or unconscionably.” Hodges,
43 S.W.3d at 921. In addition, a trial court may abuse its discretion when it “appl[ies] an
incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous
assessment of the evidence, or relies on reasoning that causes an injustice.” Armbrister v.
Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013) (quoting Gonsewski v. Gonsewski, 350
S.W.3d 99, 105 (Tenn. 2011)). Moreover, “[t]he reviewing court is to begin with the
presumption that the trial court’s decision is correct and should review the evidence in the
light most favorable to the decision.” Shofner v. Mahaffey, No. M2012-02061-COA-R3-
CV, 2013 WL 5178612, at *3 (Tenn. Ct. App. Sept. 12, 2013) (citing Amanns v. Grissom,
333 S.W.3d 90, 98 (Tenn. Ct. App. 2010)). Nevertheless, “[d]ismissal is a harsh sanction
that generally is not favored in circumstances where lesser sanctions are available, and this
court does not treat decisions to dismiss cases pursuant to 41.02 lightly.” Mfrs.
Consolidation Serv., 42 S.W.3d at 864.
Furthermore, we recognize that Mr. Burford is a pro se litigant and respect his
decision to proceed self-represented. With regard to self-represented litigants, this Court
has explained:
Pro se litigants who invoke the complex and sometimes technical
procedures of the courts assume a very heavy burden. Gray v. Stillman White
Co., 522 A.2d 737, 741 (R. I. 1987). Conducting a trial with a pro se litigant
who is unschooled in the intricacies of evidence and trial practice can be
difficult. Oko v. Rogers, 125 Ill. App.3d 720, 81 Ill. Dec. 72, 75, 466 N.E.2d
658, 661 (1984). Nonetheless, trial courts are expected to appreciate and be
understanding of the difficulties encountered by a party who is embarking
into the maze of the judicial process with no experience or formal training.
Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988). Although parties
proceeding without benefit of counsel are “entitled to fair and equal treatment by the
courts,” 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). In addition, this Court must “be
mindful of the boundary between fairness to a pro se litigant and unfairness to the pro se
litigant's adversary.” Id. Moreover, “[p]ro se litigants are not . . . entitled to shift the
burden of litigating their case to the courts.” See Chiozza v. Chiozza, 315 S.W.3d 482, 487
(Tenn. Ct. App. 2009) (quoting Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn.
Ct. App. 2000)).
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IV. Compliance with Tennessee Rule of Appellate Procedure 27
As a threshold matter, we address TDOC’s postulate that Mr. Burford’s brief fails
to comply with Tennessee Rule of Appellate Procedure 27(a), which provides in pertinent
part:
(a) Brief of the Appellant. The brief of the appellant shall contain under
appropriate headings and in the order here indicated:
***
(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;
(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.
TDOC contends that in his brief, Mr. Burford “has failed to comply with many of
the content and preparation requirements for appellate briefs.” Specifically, TDOC argues
that Mr. Burford’s brief is “lacking a statement of the issues, statement of the case,
statement of facts, and an applicable standard of review,” stressing that Mr. Burford’s
principal brief is primarily comprised of documents that he filed previously with the trial
court. In addition, TDOC points out that Mr. Burford has “failed to include any citations
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to the record.” In response, Mr. Burford posits that he has complied with Rule 27
requirements “to the best of his ability[,] knowledge[,] and legal understanding.”
Furthermore, Mr. Burford requests that this Court excuse any defects in his brief for “just
cause” due to the limited access to the legal library at Turner Trousdale Correctional
Center, where Mr. Burford was housed during the pendency of this appeal, while the
COVID-19 pandemic continued.
We recognize and respect that Mr. Burford is representing himself in this appeal,
and as a pro se appellant, he may have “little familiarity with the rules of this Court.” City
of La Vergne v. LeQuire, No. M2016-00028-COA-R3-CV, 2016 WL 6124117, at *2
(Tenn. Ct. App. Oct. 19, 2016). For this reason, this Court has previously stated that “[t]he
courts give pro se litigants who are untrained in the law a certain amount of leeway in
drafting their pleadings and briefs.” Hessmer, 138 S.W.3d at 903. Furthermore, courts are
encouraged to “give effect to the substance, rather than the form or terminology, of a pro
se litigant’s papers.” Id. at 904. 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” and
“must not excuse pro se litigants from complying with the same substantive and procedural
rules that represented parties are expected to observe.” Id. at 903.
Although TDOC correctly notes that Mr. Burford’s brief is not in strict compliance
with the requirements of Rule 27, this Court may, “in its discretion, suspend or relax the
procedural rules in a given case for good cause.” City of La Vergne, 2016 WL 6124117,
at *2 (citing Tenn. R. App. P. 2). In addition, “[t]he Tennessee Rules of Appellate
Procedure should be construed to afford all parties a hearing on the merits.” Paehler v.
Union Planters Nat’l Bank, 971 S.W.2d 393, 397 (Tenn. Ct. App. 1997) (deciding the
appeal on the merits despite acknowledging that the appellant failed to comply with Rule
27); see also Tenn. R. App. P. 1 (“These rules shall be construed to secure the just, speedy,
and inexpensive determination of every proceeding on its merits.”).
Mr. Burford has attempted to comply with Rule 27 by dividing his principal brief
into appropriate sections, citing to what he considers to be relevant legal authority, and
summarizing the nature of the case as he understands it. Although Mr. Burford did not cite
to the record, he did attach exhibits contained within the record in an ostensible attempt to
do so. In addition, Mr. Burford advances the argument that he has had limited access to
the legal library due to movement restrictions established during the COVID-19 pandemic.
Although some deficiencies are apparent in Mr. Burford’s brief, we determine that Mr.
Burford has not failed to comply with Rule 27 so substantially as to waive what we
determine to be the dispositive issue: whether the trial court abused its discretion by
dismissing the Petition. See, e.g., Diggs v. Lasalle Nat’l Bank Ass’n, 387 S.W.3d 559, 563-
64 (Tenn. Ct. App. 2012) (deciding the appeal on the merits when this Court discerned
“only one dispositive issue” in the case, despite there being “profound deficiencies” in the
brief); City of Le Vergne, 2016 WL 6124117, at *2 (finding good cause to decide the merits
of the appeal when the deficiencies in the appellant’s brief did not impede the Court’s
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ability to do so, the appellant’s argument was clear, and the appellee did not claim that it
would be unfairly prejudiced). Upon careful consideration and in light of Mr. Burford’s
self-represented status, this Court will consider Mr. Burford’s appeal so as to give effect to
the substance of his brief and decide the case on the merits.
V. Dismissal of Petition for Declaratory Judgment
The trial court dismissed the Petition by reason of Mr. Burford’s failure to comply
with the court’s December 18, 2019 and February 14, 2020 orders directing Mr. Burford
to fulfill the filing requirements of Tennessee Code Annotated § 41-21-801, et seq., and
Tennessee Rule of Civil Procedure 4.01. Although Mr. Burford had submitted the inmate
affidavit, pursuant to Tennessee Code Annotated § 41-21-805 (2019), and a certified copy
of his inmate trust account statement, pursuant to Tennessee Code Annotated § 41-21-807
(2019), he had failed to (1) pay the partial filing fee set by the trial court’s December 18,
2019 order; (2) file an affidavit of indigency; and (3) submit copies of the Petition and
summons for each named respondent. In its order denying Mr. Burford’s post-judgment
motion, the trial court noted that Mr. Burford had subsequently made payments toward his
filing fee but never filed the affidavit of indigency in compliance with Tennessee Code
Annotated §§ 20-12-127 (2009) and 41-21-801, et seq., or provided copies of the Petition
and summons for each respondent in compliance with Tennessee Rule of Civil Procedure
4.01. Consequently, the trial court dismissed Mr. Burford’s Petition. TDOC contends that
the trial court did not abuse its discretion by dismissing the Petition based on Mr. Burford’s
failure to comply with the trial court’s orders. We agree with TDOC and affirm the
judgment of the trial court.
First, we determine that the trial court did not abuse its discretion by dismissing the
Petition based on Mr. Burford’s failure to pay the required initial partial filing fee pursuant
to Tennessee Code Annotated § 41-21-807, which provides in pertinent part:
(a) An inmate seeking to bring a civil action or appeal a judgment in a
civil action or proceeding without prepayment of fees or security for
the fees, in addition to filing the affidavit required by § 41-21-805,
shall submit a certified copy of the trust fund account statement, or
the institutional equivalent, for the inmate for the six-month period
immediately preceding the filing of the complaint or notice of appeal,
obtained from the appropriate official of each facility at which the
inmate is or was confined.
(b)(1) If an inmate brings a civil action or files an appeal in forma pauperis,
the inmate shall be required to pay the full amount of the filing fee.
The court shall assess and, when funds exist, collect, as a partial
payment of any court fees required by law, an initial partial filing fee
of twenty percent (20%) of the greater of the average monthly:
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(A) Deposits to the inmate’s account; or
(B) Balance in the inmate’s account for the six-month period
immediately preceding the filing of the complaint or notice of
appeal.
According to subsection (b)(1), an inmate who brings an action in forma pauperis
is still required to pay the filing fee. In addition, the trial court is required by the above
statutory language to collect an initial partial filing fee of 20% of the greater of the average
monthly deposit to the inmate’s account or balance in his account for the six-month period
immediately preceding the filing of his Petition. After making this initial payment, the
inmate is then required to make monthly payments of 20% of the preceding month’s
income credited to his account.
This Court has previously affirmed dismissals based on an inmate’s failure to pay
the partial filing fee required by Tennessee Code Annotated § 41-21-807. See Hill v. Tenn.
Bd. of Prob. & Parole, No. M2008-00561-COA-R3-CV, 2009 WL 1362363, at *2 (Tenn.
Ct. App. May 14, 2009) (“The Trial Court, pursuant to [Tennessee Code Annotated § 41-
21-807], ordered the petitioner to make a partial payment of the filing fee within a certain
time, and if the petitioner failed to comply, it was appropriate for the Trial Court to dismiss
the petition.”); Chambers v. Tenn. Bd. of Prob. & Parole, M2007-00042-COA-R3-CV,
2008 WL 204111, at *2 (Tenn. Ct. App. Jan. 24, 2008) (“Failure to comply with the
requirement of Tenn. Code Ann. § 41-21-807 authorizes a trial court to dismiss the
action.”); Wallace v. Tenn. Dep’t of Corrs., No. M2005-01916-COA-R3-CV, 2006 WL
3246104, at *2 (Tenn. Ct. App. Nov. 8, 2006) (affirming the trial court’s dismissal of the
petition based on the petitioner’s failure to pay the partial filing fee when “funds were
available for Plaintiff to make a partial payment” and “[f]unds continued to come available
to Plaintiff even after the Trial Court entered its order requiring Plaintiff to make the
necessary payment.”); Freeman v. Tenn. Dep’t of Prob. & Parole, No. M2002-00958-
COA-R3-CV, 2003 WL 1798080, at *2 (Tenn. Ct. App. April 7, 2003) (affirming the trial
court’s dismissal of the petition when the petitioner failed to pay the partial filing fee
despite his account records reflecting “a deposit and balance history that would have
enabled him to make the partial payment required by Tenn. Code Ann. § 41-21-807(b)(1)
anytime before the trial court eventually dismissed his petition”); cf. State v. Jefferson, No.
M2015-01321-CCA-R3-CD, 2016 WL 1161066, at *4 (Tenn. Crim. App. Mar. 23, 2016)
(concluding that the petitioner “could not be prohibited from bringing a civil action for
failure to make said payment” because he filed documentation to show that he had “‘no
assets and no means by which to pay the initial partial filing fee’”) (quoting Tenn. Code
Ann. § 41-21-807(b)(4)).
Here, Mr. Burford complied with subsection (a) of Tennessee Code Annotated § 41-
21-807 by filing a certified copy of his trust fund account statement for the six-month
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period immediately preceding the filing of the Petition. However, Mr. Burford failed to
comply with subsection (b) by not paying the $11.15 partial filing fee. In its December 18,
2019 order, the trial court permitted Mr. Burford thirty days in which to pay an initial
partial filing fee of $11.15. When Mr. Burford did not meet that thirty-day deadline, the
trial court afforded Mr. Burford an additional thirty days within which to comply. Mr.
Burford nonetheless failed to pay the partial filing fee by the second deadline, and the trial
court dismissed Mr. Burford’s appeal as a result. Upon careful review, we conclude that
the trial court did not abuse its discretion by doing so.
Mr. Burford submitted a certified copy of his inmate trust account, which showed
his account’s balance from April 26, 2019, to November 20, 2019. Although Mr. Burford
only maintained $.07 in his account as of November 20, 2019, before the filing of the
Petition, the average balance in his account during the preceding six months was $59.03.
Even though Mr. Burford may have been unable to afford the partial filing fee when he
filed the Petition on December 13, 2019, there is no indication that Mr. Burford could not
have afforded the $11.15 partial filing fee between the time the trial court issued its initial
instruction on December 18, 2019, and the time it dismissed Mr. Burford’s Petition on
March 17, 2020.1 Ergo, Mr. Burford had nearly three months during which to pay the
partial filing fee.
Although Mr. Burford noted in his post-judgment motion that “as of March 28,
2020, [he had] not received any funds/income due to the lock-down-restricted movement,”
this does not explain why Mr. Burford could not have paid the partial filing fee during the
three months preceding the advent of the COVID-19 pandemic lockdowns. Furthermore,
Mr. Burford never claimed that he could not afford the $11.15 fee or provided the trial
court with documentation indicating an inability to pay prior to the trial court’s dismissal
of the Petition. Cf. Jefferson, 2016 WL 1161066, at *4 (determining that a trust fund
certification that reflected an inmate trust fund account balance of $0.00 at the time the
petition was filed and an average balance of $0.00 for the past six months constituted
sufficient documentation to prove that the petitioner had “‘no assets and no means by which
to pay the initial partial filing fee’”) (quoting Tenn. Code Ann. § 41-21-807(b)(4)).
Inasmuch as Mr. Burford failed to pay the partial filing fee, his trust fund account
statement indicated a prior history of regular deposits more than sufficient to cover the fee,
and the trial court informed him of the consequences for failure to pay the fee, we find no
abuse of discretion in the trial court’s decision to dismiss the Petition on this ground. See
Bough v. Tenn. Dep’t of Corr., No. E2017-02350-COA-R3-CV, 2018 WL 4181877, at *2
1
We note also that in order to proceed with his appeal in compliance with Tennessee Code Annotated §
41-21-801, et seq., Mr. Burford filed a certified copy of his trust fund account with this Court. In addition,
Mr. Burford filed account balance statements from January 15, 2020, to July 14, 2020. These account
balance statements reveal that Mr. Burford’s account had a balance of $33.07 as of February 13, 2020. The
trial court did not dismiss the Petition until March 17, 2020. Thus, Mr. Burford had sufficient funds to pay
the partial filing fee before the trial court dismissed the Petition.
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(Tenn. Ct. App. Aug. 30, 2018) (noting that this Court has previously affirmed dismissals
based on a petitioner’s failure to pay the partial filing fee when “each inmate had sufficient
funds to pay the fee, was informed of the consequences for not paying the fee, and failed
to provide a justification for not paying the fee”).
A second basis for the trial court’s order dismissing the Petition was Mr. Burford’s
failure to submit and file an affidavit of indigency pursuant to Tennessee Code Annotated
§§ 20-12-127 and 41-21-801, et seq. The trial court properly acted within its discretion by
dismissing the Petition on this basis as well because Mr. Burford, intending to proceed in
forma pauperis, was required to file an affidavit of indigency. As this Court has previously
stated:
It is well settled that a litigant commencing a civil action in a
Tennessee court must file a cost bond and pay an initial filing fee. Litigants
who are indigent may be excused from filing a cost bond by filing an affidavit
stating that they are justly entitled to legal or equitable relief but are unable
to bear the expense of the litigation because of their poverty.
Spates v. Howell, 420 S.W.3d 776, 783 (Tenn. Ct. App. 2013) (citing Tenn. Code Ann. §
20-12-127(a)). Tennessee Code Annotated § 20-12-127(a) provides that “[a]ny civil action
may be commenced by a resident of this state without giving security as required by law
for costs and without the payment of litigation taxes due by” filing an oath of poverty. If
a plaintiff does not file a cost bond and wishes to proceed in forma pauperis, the party must
file an affidavit of indigency. See Spates, 420 S.W.3d at 783. Here, no evidence in the
record indicates that Mr. Burford provided security for costs, and Mr. Burford’s failure to
do so indicates that he intended to proceed as an indigent petitioner and therefore was
required to file an affidavit of indigency to commence the action.
Furthermore, the Tennessee Prisoner Litigation Reform Act only applies to claims
brought by inmates who file an “affidavit of inability to pay costs” with the claim. See
Tenn. Code Ann. § 41-21-802 (2019) (“This part applies only to a claim brought by an
inmate in general sessions or a trial level court of record in which an affidavit of inability
to pay costs is filed with the claim by the inmate.”). Additionally, Tennessee Code
Annotated § 41-21-805 contemplates that inmates filing suits under this Act will file an
“affidavit of inability to pay costs” along with the separate inmate affidavit, which lists
previous lawsuits or claims filed by the inmate. Given that Mr. Burford filed the inmate
affidavit, pursuant to Tennessee Code Annotated § 41-21-805, and a certified copy of the
trust fund account statement, pursuant to Tennessee Code Annotated § 41-21-807, every
indication is that Mr. Burford intended to file the Petition under the Tennessee Prisoner
Litigation Reform Act and proceed as an indigent petitioner. Therefore, Mr. Burford was
required to submit an affidavit of indigency in order to proceed. Inasmuch as Mr. Burford
failed to meet this requirement, the trial court did not abuse its discretion by dismissing the
Petition on this basis.
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The trial court also predicated its decision to dismiss the Petition on Mr. Burford’s
failure to provide copies of the Petition and summons in duplicate for each respondent.
This is also a proper basis for dismissal. This Court has previously upheld a trial court’s
decision to dismiss a plaintiff’s case for failure to provide the clerk of the court with
sufficient copies of the complaint and summons for each defendant. See Hodges, 43
S.W.3d at 920. As the Hodges Court noted:
Because Tenn. R. Civ. P. 4.01 requires the service of a copy of the complaint
and a summons on each of the defendants, the lawyer representing the
plaintiff or the plaintiff himself or herself must also provide the clerk of the
court with sufficient copies of the complaint and completed summons for
service on each of the defendants. Tenn. R. Civ. P. 3 advisory commission
1992 cmt. An unexplained failure to file a summons with the trial court clerk
or to otherwise cause a summons to be issued can result in the dismissal of a
complaint for failure to prosecute. Accordingly, we have upheld the
dismissal of a complaint for failure to prosecute following an unexplained
seven month delay in causing a summons to be issued. Strong v. Elkins, No.
01A01-9201-CV-00028, 1992 WL 113419, at *2 (Tenn. Ct. App. May 29,
1992) (No Tenn. R. App. P. 11 application filed).
Id. (footnote omitted).
We note, however, that in the case at bar, evidence exists in the record
demonstrating that respondents Commissioner Parker and CoreCivic received copies of the
Petition and summons. Commissioner Parker stated in his motion for an extension of time:
“On or about January 21, 2020, service of Plaintiff’s summons and complaint were
accepted on behalf of Commissioner Parker in his official capacity only.” In addition,
CoreCivic referred to Mr. Burford’s “Complaint” and summons in its January 30, 2020
motion to dismiss. Although these two respondents’ statements in their respective motions
would suggest that copies of the Petition and summons were provided to them, Mr. Burford
also acknowledged in his April 9, 2020 post-judgment motion that he did not provide the
copies of the Petition and summons to the court Clerk and Master by stating that “the
additional copies of complaint for each named Respondent[] . . . has been impeded by
delayed mail service[.]”
Although it remains unclear how Commissioner Parker and CoreCivic received
copies of the Petition and summons, this Court will not second-guess the trial court’s
determination that Mr. Burford failed to file sufficient copies of the Petition and summons
for each respondent with the court clerk. We emphasize that this Court will presume that
the trial court’s decision is correct and will review the evidence in the light most favorable
to the trial court’s decision. See Shofner, 2013 WL 5178612, at *3. Therefore, without
evidence in the record that clearly contradicts the trial court’s order of dismissal and
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indicates that Mr. Burford complied with the trial court’s orders and filed copies of the
Petition and summons for each respondent with the court Clerk and Master, this Court
concludes that the trial court was correct in its determination.
Inasmuch as Mr. Burford failed to comply with the requirements of Tennessee Code
Annotated § 41-21-801, et seq., the requirements of Tennessee Rule of Civil Procedure
4.01, and the trial court’s orders, we conclude that the trial court did not abuse its discretion
in dismissing the Petition.2
VI. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court dismissing the
Petition. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the judgment and collection of costs assessed below. Costs on appeal are
assessed to the appellant, Daryl K. Burford.
s/ Thomas R. Frierson, II_____________
THOMAS R. FRIERSON, II, JUDGE
2
We note that neither Mr. Burford nor TDOC raised the issues of whether the trial court’s dismissal of the
Petition is with or without prejudice or whether it should be with or without prejudice. We therefore make
no determination in this regard. See Tenn. R. App. P. 13(b) (“Review generally will extend only to those
issues presented for review.”).
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