                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                 Assigned On Brief May 25, 2004

                      DAVID SHARP v. STATE OF TENNESSEE

            Direct Appeal from the Claims Commission of the State of Tennessee
                 No. 20-300-947    Nancy C. Miller-Herron, Commissioner



                           No. W2004-00044-COA-R3-CV - June 16, 2004


An inmate filed a claim with the Claims Commission contending negligence on the part of the
Tennessee Department of Correction in miscalculating his sentence credits. The Commission
dismissed for lack of jurisdiction, the inmate appealed, and we affirm.


   Tenn. R. App. P 3 Appeal as of Right; Judgment of the Claims Commission Affirmed

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

David H. Sharp, Pro se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore Solicitor General and John H.
Sinclair, Jr., Assistant Attorney General, for the State of Tennessee.

                                      MEMORANDUM OPINION1


       David Sharp, an inmate in custody of the Tennessee Department of Correction (TDOC), filed
a claim with the Division of Claims Administration. The claim was transferred to the Claims
Commission on April 22, 2003. The basis of the claim was that the TDOC negligently, willfully and
maliciously miscalculated Mr. Sharp’s sentence credits. Claimant sought damages in the amount
of $500,000 for loss of wages and loss of freedom.


       1
        RULE 10. M EM ORANDUM OPINION
                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. W hen 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       “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any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.
        The State filed a motion to dismiss pursuant to Rule 12.02 of the Tennessee Rules of Civil
Procedure on the basis that the Claims Commission lacked jurisdiction to hear the claim and the
motion was granted. Mr. Sharp appeals, contending that the granting of the motion to dismiss was
in error.

        Generally, an appeal from the Tennessee Claims Commission is reviewed de novo with a
presumption of correctness in its findings of fact. See Dobson v. State, 23 S.W.3d 324, 328-29
(Tenn. Ct. App. 1999). However, in reviewing a dismissal pursuant to Rule 12.02, we assume all
the Plaintiff’s allegations to be true and review the lower court’s conclusions de novo with no
presumption of correctness. See King v. Danek Medical, Inc., 37 S.W.3d 429, 453-54 (Tenn. Ct.
App. 2000). Whether subject matter jurisdiction exists is a question of law. Therefore, our standard
of review is de novo without a presumption of correctness. See Northland Ins. Co. v. State, 33
S.W.3d 727, 729 (Tenn. 2000).

       Mr. Sharp asserts on appeal that “[t]his is a negligence action under T.C.A. § 9-8-
307(a)(1)(E).”

        In addressing the doctrine of sovereign immunity, our supreme court, speaking through Chief
Justice Drowota, recently stated as follows:

                Article I, section 17 of the Tennessee Constitution provides that “[s]uits may
        be brought against the State in such manner and in such courts as the Legislature may
        by law direct.” This constitutional provision reflects sovereign immunity, the notion
        that a sovereign governmental entity cannot be sued in its own courts without its
        consent. See State v. Cook, 171 Tenn. 605, 609, 106 S.W.2d 858, 860 (1937); Tenn.
        Code Ann. § 20-13-102 (“No court in the state shall have any power, jurisdiction, or
        authority to entertain any suit against the state . . . with a view to reach the state, its
        treasury, funds, or property . . .”). As a general interpretive matter this Court has held
        that the principle of sovereign immunity requires that legislation authorizing suits
        against the state must provide for the state’s consent in “plain, clear, and
        unmistakable” terms. Cook, 171 Tenn. at 611, 106 S.W.2d at 861; see also Beare
        Company v. Olsen, 711 S.W.2d 603, 605 (Tenn. 1986). We must therefore carefully
        analyze the statute granting jurisdiction to the Tennessee Claims Commission, which
        this Court has previously held creates a “sweeping procedure for filing monetary
        claims against the state.” Hembree v. State, 925 S.W.2d 513, 516 (Tenn. 1996).

Northland Ins. Co., 33 S.W.3d at 729.

        Tennessee Code Annotated § 9-8-307 states that the Commission has “exclusive jurisdiction
to determine all monetary claims against the state based on the acts or omissions of “state
employees” . . . falling within one (1) or more of the following categories [.]” Tenn. Code Ann. §
9-8-307(a)(1). Mr. Sharp relies upon section 9-8-307(a)(1)(E)(Negligent care, custody, and control
of persons). It is provided in section 9-8-307(a)(3) that “[i]t is the intent of the general assembly that


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the jurisdiction of the claims commission be liberally construed to implement the remedial purposes
of this legislation.” We are inclined to agree with the Claims Commission that Mr. Sharp’s claim
of negligent miscalculation of his sentence credits does not fall within the jurisdictional statute. Mr.
Sharp has cited no authority to convince us otherwise.

        Mr. Sharp next argues that “Appellee had a duty of care to appellant. This duty was
established by the Tennessee Legislature as a matter of right through T.C.A. 4-1-103 Oath of Office
of Officers’ and employees which mandated that appellee followed Appellee’s administrative
policies including 505.01, Sentence Credits.” Tennessee Code Annotated § 9-8-307(a)(1)(N) states
that the Claims Commission has jurisdiction to decide monetary claims against the state for the

       [n]egligent deprivation of statutory rights created under Tennessee law, except for
       actions arising out of claims over which the civil service commission has jurisdiction.
       The claimant must prove under this subdivision that the general assembly expressly
       conferred a private right of action in favor of the claimant against the state for the
       state’s violation of the particular statute’s provisions[.]

Therefore, the above statute conferring jurisdiction on the Claims Commission specifies that Mr.
Sharp must show that this statute allegedly violated by the state expressly grants individuals a private
right of action to enforce those rights. For every statutory right allegedly violated by the state, Mr.
Sharp must reference explicit statutory language that would grant him the private right of action to
enforce the statute. Mr. Sharp’s claim states, in pertinent part, that the TDOC negligently
miscalculated his sentence credits “in violation of T.C.A. §§ 41-332 and 41-334. In July 1, 1981,
TCA §§ 41-332 and 41-334 was [sic] abrogated and a new sentencing statute enacted, T.C.A. §§ 41-
21-229 and 41-21-230 which sets out how prisoners such as myself are to obtain good conduct
sentence credits . . . .” Mr. Sharp has not cited express language in the statutes relied upon that
granted a private right of action in his favor. We have further reviewed Tenn. Code Ann. § 41-21-
236. Sentence reduction credits. We likewise failed to find such express language in that statute.
Accordingly, we hold that the Tennessee Claims Commission lacked the subject matter jurisdiction
to hear Mr. Sharp’s claim and that dismissal under Rule 12.02 of the Tennessee Rules of Civil
Procedure was proper in this case.

       An inmate who contends that he has not been given proper sentence reduction credits is not
without recourse but may avail himself of the Administrative Procedures Act, Tenn. Code Ann. §
4-5-101, et seq. See James A. Vaughn v. State, No. 01 CO1-9308-CR-00258 (Tenn. Crim. App.,
Nashville, Feb. 24, 1994); see also Russell Kirby v. State, No. 03 CO1-9309-CR-00303 (Tenn. Crim.
App., Knoxville, Aug. 22, 1994).




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       The decision of the Claims Commission is affirmed. The costs of this appeal are taxed to
the Appellant, David Sharp, for which execution may issue if necessary.



                                                    ___________________________________
                                                    DAVID R. FARMER, JUDGE




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