                                                                                                  10/31/2018
                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                Assigned on Briefs August 1, 2018

      JARVIS Q. WILLIAMS V. CHERRY LINDAMOOD, WARDEN, ET AL.

                      Appeal from the Chancery Court for Wayne County
                       No. CT-002105-16    Robert L. Jones, Chancellor


                                   No. M2017-02407-COA-R3-CV


An inmate at the South Central Correctional Facility in Clifton, Tennessee, filed this
action to challenge the confiscation and destruction of his property and the decision of the
prison grievance board concerning said property. The respondents denied the allegations.
The trial court dismissed the petition as to all respondents. We affirm.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                               Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which FRANK G.
CLEMENT, JR., P.J., M.S. and BRANDON O. GIBSON, J., joined.

Jarvis Q. Williams, Clinton, Tennessee, pro se.

James I. Pentecost and J. Austin Stokes, Jackson, Tennessee, for the appellees, Warden
Cherry Lindamood, Ronald White, Scotty Peeler, Shane McClain, and Rhonda Riley.

                                    MEMORANDUM OPINION1

       Jarvis Q. Williams (“Petitioner”) submitted an inmate grievance form on June 10,
2016, concerning the confiscation of his personal property on May 17. Petitioner alleged
that his fan and a pair of CL-20 headphones were taken from him during the intake
process following his transfer from Trousdale Turner Correctional Center. On June 13,

1
    Rule 10 of the Rules of the Court of Appeals of Tennessee provides as follows:

          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          opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and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.
Petitioner received a response from the grievance committee in which he was advised
that his grievance was inappropriate because it had not been filed within seven calendar
days of the occurrence giving rise to the grievance.

       Petitioner submitted a second inmate grievance form on October 12, 2016,
concerning the destruction of his Sony CDR radio during a search of his housing cell. He
requested permission “to replace [his] personal property with a radio of the same model
or of equal value and size.” On October 19, Petitioner received a supervisor response
advising him that he was allotted 30 days in which to mail his radio out and that he would
not be allowed to replace his radio with the same model. A hearing before the grievance
committee was held on October 23, during which it was discovered that the radio at issue
was “grandfathered in and [was] no longer allowed to be purchased.” Following the
hearing, the grievance committee affirmed the supervisor’s response. Thereafter,
Petitioner initiated correspondence on January 5 and February 3, 2017, in which he
requested a written response with findings and explanations concerning the destruction of
his property. He also requested a criminal investigation by forwarding an affidavit of
complaint to the District Attorney General on March 9 and a letter requesting criminal
action on April 21. Petitioner has received no response.

       On June 8, 2017, Petitioner filed this civil action to recover his personal property
with an attached affidavit of inability to pay costs. Warden Cherry Lindamood, Ronald
White, Scotty Peeler, Shane McClain, and Rhonda Riley (collectively “Respondents”)
were named as respondents. Respondents filed a motion to dismiss, citing Petitioner’s
failure to file a separate affidavit listing every lawsuit previously filed pursuant to
Tennessee Code Annotated section 41-21-805(a)(1), which provides as follows:

       (a)    Any inmate who files a claim with an affidavit of inability to pay
       costs shall file a separate affidavit with the following information:

       (1)    A complete list of every lawsuit or claim previously filed by the
       inmate, without regard to whether the inmate was incarcerated at the time
       any claim or action was filed[.]

Petitioner then filed an affidavit compliant with Section 41-21-805(a)(1) and requested
acceptance of his filing to cure the procedural defect. The trial court denied the motion to
dismiss and directed the parties to provide the rules and regulations concerning the taking
of Petitioner’s property in advance of the hearing.

      The case proceeded to a hearing, after which the trial court dismissed the action,
holding that Petitioner failed to exhaust his administrative remedies and had not filed a

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timely appeal and that the evidence adequately supported the conclusions made in the
administrative proceedings. This timely appeal followed.

        The sole and dispositive issue on appeal is whether the court properly dismissed
the action. Civil litigation initiated by state prisoners with an attached affidavit of
inability to pay costs is governed by Tennessee Code Annotated Section 41-21-801, et.
seq. As pertinent to this appeal, Section 41-21-806 provides as follows:

        (a)    An inmate who files a claim that is subject to review by the
        grievance committee established by the department shall file with the court
        an affidavit stating the date that the grievance was filed and the date the
        final decision was received by the inmate with a copy of the final decision
        from the grievance committee.

        (b)    The court shall dismiss the claim if the inmate fails to file the claim
        before the thirty-first day after the date the inmate receives the final
        decision from the grievance committee.

Here, the Petitioner attested that he filed his initial claims with the grievance committee
on June 10 and October 12, 2016, and that he received the final decisions from the
committee on June 13 and November 4, 2016. This action was filed on June 8, 2017.

        Petitioner argues on appeal in his reply to Respondent’s responsive brief that
dismissal pursuant to Section 41-21-806 was erroneous because his claim was not subject
to review by the grievance committee, thereby establishing the inapplicability of Section
41-21-801, et. seq.2 Petitioner did not assert this argument at the trial court level or in his
initial brief to this court. To the contrary, Petitioner cited Section 41-21-801 in his claim
for writ of possession and evaded dismissal of the action by his late-filed compliance
with the procedural requirements contained therein. A party may not offer a new issue

2
  In support of his argument, Petitioner cites the Tennessee Department of Correction Policy #501.01,
which defines a grievance as:
        A written complaint concerning the substance or application of a written or unwritten
        policy or practice, any single behavior or action toward an inmate by staff or other
        inmates, or any condition or incident within the Department or institution which
        personally affects the inmate complainant.
Policy #501.01 provides that claims for monetary compensation for injuries or property loss are “non-
grievable” and may not be considered by the grievance committee. The record reflects that Petitioner
sought the return of his fan and headphones and that he requested the replacement of his radio with the
same or similar model. He did not request monetary compensation from the committee. Further, Section
41-21-801, et. seq. is applicable to “a claim brought by an inmate in . . . a trial level court of record in
which an affidavit of inability to pay costs is filed with the claim by the inmate.” Such is the case here.
                                                      -3-
for the first time on appeal. See Lane v. Becker, 334 S.W.3d 756, 764 (Tenn. Ct. App.
2010) (citing Campbell Cnty. Bd. of Educ. v. Brownlee-Kesterson, Inc., 677 S.W.2d 457,
466-67 (Tenn. Ct. App. 1984)). “The jurisprudential restriction against permitting parties
to raise issues on appeal that were not first raised in the trial court is premised on the
doctrine of waiver.” Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009) (citations
omitted). This issue is waived.

        Petitioner alternatively argues that Respondents may not rely upon the statute of
limitations provided in Section 41-21-806 because they failed to raise the issue at the trial
court level. The record reflects that Respondents asserted any applicable statute of
limitations as a defense in the answer to the complaint. The court dismissed the claim, in
part, due to the untimely filing of the action.

       Petitioner next argues that his claim concerning the confiscation and destruction of
his radio is not subject to the statute of limitations because he appealed the grievance
committee’s decision to the Commissioner but never received a response. The Tennessee
Department of Correction (“TDOC”) Policy #501.01 provides that an inmate may appeal
a grievance committee’s decision within 5 calendar days to the Commissioner, who is
then required to issue a response within 25 working days of the date the appeal is
received. TDOC policy #501.01 further provides as follows:

       If a time limit expires at any stage of the process without a required
       response, the grievant may move the grievance to the next stage of the
       process, unless the inmate agrees in writing to a fixed extension of the time
       limit for response.

Petitioner does not argue and did not include any filing indicating that he agreed to a
fixed extension of the time limit. Here, he received the committee’s response on
November 4, 2016, but did not file the action until June 8, 2017, well beyond the 31-day
statute of limitations and any additional time that may be allotted to account for the filing
of the Commissioner’s response to an administrative appeal.

       With all of the above considerations in mind, we must affirm the court’s dismissal
of the action pursuant to Section 41-21-806(b). This case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Jarvis Q.
Williams.


                                                  _________________________________
                                                  JOHN W. McCLARTY, JUDGE

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