                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE

                  EDDIE WILLIAMS, JR. v. RICKY BELL, ET AL.

                 Direct Appeal from the Circuit Court for Davidson County
                           No. 99C-414    Carol Soloman, Judge



                    No. M1999-02124-COA-R3-CV - Decided May 25, 2000


A prisoner filed suit against eight employees of the Department of Correction, claiming numerous
violations of his civil rights. The trial court dismissed the suit for failure to comply with Tenn.
Code. Ann. § 41-21-801, et seq., which requires inmates who file their suits in forma pauperis to
submit to the trial court a complete list of every previous claim or lawsuit filed by the inmate. We
affirm the dismissal, but hold it to be without prejudice

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as
                                Modified and Remanded.

CANTRELL , P.J., M.S., delivered the opinion of the court, in which KOCH and CAIN , JJ. joined.

Eddie Williams, Jr., Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Pamela S.
Lorch, Assistant Attorney General, for the appellee, State of Tennessee


                                             OPINION

                             I. Proceedings in the Chancery Court

        On September 23, 1998, Eddie Williams Jr. filed a “Complaint for Violation of Civil Rights”
in the Chancery Court of Davidson County. The complaint named as defendants five correctional
officers at the Riverbend Maximum Security Institution including the Warden and Assistant Warden.
An amended complaint increased the number of defendants to eight.

        Mr. Williams claimed that he was denied access to law books that he needed for a post-
conviction appeal. He also claimed that he was dismissed from his prison job and replaced with a
white inmate because of racial prejudice. In his complaint and in subsequent motions, he asked the
court among other things for a declaratory order that his constitutional rights had been violated; for
an order directing the defendants to supply him with legal books, legal copies, notary service and
legal postage; for an injunction prohibiting the defendants from any further acts of racial
discrimination; and for an award against the defendants of $10,000 in compensatory damages, and
an unstated amount of punitive damages. He also filed a motion for default judgment.

        On November 6, 1998, the original five defendants filed a motion to dismiss the complaint
for failure to state a claim upon which relief can be granted under Tenn. R. Civ. P. 12.02(6). The
other defendants subsequently filed a motion for an extension of time in which to file a response, and
a motion to be joined in the motion to dismiss.

       On December 23, the trial court ruled on the plaintiff’s pending motions. The chancellor
denied the motion for default, and specifically rejected the motion for an order to compel the
defendants to supply him with legal books, copies and other assistance, and the motion for a
temporary restraining order or an injunction. The chancellor granted the defendants’ motion for an
extension of time in which to respond.

        On February 5, 1999, the chancellor granted the defendants’ motion to dismiss. The court
noted that the plaintiff was seeking compensatory and punitive damages, and that the chancery court
does not have jurisdiction to consider cases which seek an award of liquidated damages. Tenn.
Code. Ann. § 16-11-102(a). The court accordingly transferred the case to the Circuit Court of
Davidson County.

                               II. Proceedings in the Circuit Court

        In the circuit court, the defendants filed a supplemental memorandum of law in support of
their motion to dismiss, and the plaintiff filed a response. The four grounds for dismissal contained
in the defendants’ memorandum were (1) that Mr. Williams failed to show that he had exhausted all
his administrative remedies before filing his complaint, (2) that he failed to allege any facts
demonstrating that the termination from his job was based on race, (3) that he failed to demonstrate
that he had suffered any litigation-based injury from the alleged deprivation of access to legal
materials, and (4) that he failed to comply with the requirements of Tenn. Code. Ann. § 41-21-805
because he did not file an affidavit listing his prior lawsuits or submit a certified copy of his trust
account to the court.

        The circuit court found that Mr. Williams’ failure to comply with Tenn. Code. Ann. § 41-21-
805 warranted dismissal of his complaint. The trial judge also considered the other grounds of
dismissal, and found that she agreed with the defendants that Mr. Williams’ claim of deprivation of
access to legal materials could not be sustained. But she also found that he had stated a facially valid
claim of racial discrimination, and declared herself satisfied with the proof he presented that he had
exhausted his administrative remedies. This appeal followed.




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                      III. Dismissal Under Tenn. Code. Ann. § 41-21-805

         Tenn. Code. Ann. § 41-21-801, et seq., imposes a duty upon inmates who file claims in forma
pauperis to submit affidavits documenting their prior history of litigation, before a trial court can rule
on their current claims. One purpose of the statutory scheme is to bar inmates who have filed
malicious or frivolous claims from filing any further lawsuits until they have paid the costs that have
accrued from those prior claims. Tenn. Code. Ann. § 41-21-812.1 Federal statutes impose similar
restrictions in federal courts on proceedings in forma pauperis. See 28 U.S.C. § 1915.

       This state’s requirements for reporting an inmate’s litigation history are set out in detail in
Tenn. Code. Ann. § 41-21-805:

        Affidavit of inability to pay - Requirements.- (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; and

                (2) For each claim or action listed in subsection (a):

                        (A)     The operative facts for which relief was sought;
                        (B)     The case name, case number and court in which the suit or
                                claim was filed;
                        (C)     The legal theory on which the relief sought was based;
                        (D)     The identification of each party named in the action; and
                        (E)     The final result of the action, including dismissal as frivolous
                                or malicious under this part or otherwise.

               (b) If the affidavit filed under this section states that a previous suit was
        dismissed as frivolous or malicious, the affidavit must state the date of the final order
        affirming the dismissal.

               (c) The affidavit must be accompanied by a current certified copy of the
        inmate's trust account statement.



        1
         The prohibition against filing subsequent lawsuits before paying the costs associated with
malicious or frivolous lawsuits is not absolute. Tenn. Code. Ann. § 41-21-812(b) reads “[a] court
may allow an inmate who has not paid any costs or expenses assessed against the inmate to file a
claim for injunctive relief seeking to enjoin an act or failure to act that creates a substantial threat
of irreparable injury or serious physical harm to the inmate.”

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         On appeal, Mr. Williams claims that he furnished the chancery court with the information
required by Tenn. Code Ann. § 41-201-805. We have found in the record a single affidavit by Mr.
Williams containing such information for one case only, Williams v. Dutton, 3:90-0288 (U.S. District
Court, M.D. Tenn). The plaintiff has, however, attached to his brief on appeal a list of no less than
13 lawsuits that he has filed in the court system in Tennessee. While his list includes each case name
and number, the court in which it was filed, and a few words about its disposition, it does not include
all the information required by Tenn. Code. Ann. § 21-41-805(a)(2).

         The defendants have appended to their brief a copy of a final order of the United States
 District Court (E.D. Tenn.) in the case of Eddie Williams Jr. v. James Morrow, et al, No. 3:97-CV-
 815, filed Mar. 30, 1998. The order strongly implies that Mr. Williams had filed three or more civil
 actions which have been dismissed as either frivolous, malicious, or for failure to state a claim. See
 28 U.S.C. § 1915(g).

         We affirm the lower court’s dismissal of the plaintiff’s complaint, but we hold that the
 dismissal is without prejudice. The effect of an order of dismissal for failure to comply with Tenn.
 Code. Ann. § 41-21-801, et seq. should be the same as resulted from an older form of defensive
 pleading known as the Plea in Abatement. Such a plea sought to suspend or defeat civil actions
 because of the manner in which the action was brought. Unlike the Plea in Bar, the Plea in
 Abatement did not address the merits of the claim itself, but rather some defect or irregularity in the
 complaint, such as improper venue, lack of jurisdiction, or failure to join an indispensable party,
 which would make continuation of the suit ineffective. When the Plea in Abatement was granted,
 the complaint was dismissed without prejudice to the plaintiff’s right to receive a hearing on the
 merits, by filing another complaint with the defect corrected. See generally, Abatement, Survival
 and Revival, 1 Tennessee Jurisprudence (1982).

         While the Plea in Abatement and other technical forms of pleading have been abolished
 under the simplified rules found in the Rules of Civil Procedure, a claim that has not been heard on
 the merits may still be dismissed under the modern rules without prejudice. The question of
 whether an inmate’s failure to file a Tenn. Code. Ann. § 41-21-805 affidavit should receive such
 treatment is not quite a question of first impression, because this court has already answered that
 question in the affirmative once, although without discussion of the reasons. Sanders v. Campbell,
 02A01-9810-CV-00299 (Tenn. Ct. App. Oct. 30, 1999).

          It appears to us that in enacting Tenn. Code. Ann. § 41-21-805 et seq., the Legislature
 intended to make it more burdensome for inmates to file frivolous complaints, while not raising the
 barrier against valid claims to an unreasonable height. A trial court may more confidently demand
 strict adherence to the statute if it knows that by doing so it is not thereby closing the door forever
 on a meritorious claim. We believe that we are advancing both legislative goals by ruling that
 dismissal for failure to comply with the statute is without prejudice.




                                                  -4-
        While the defendants have primarily asked us to affirm the dismissal of the complaint, they
have also requested that we hold the trial court in error for finding that Mr. Williams had exhausted
his administrative remedies, and that he had stated a facially valid claim of racial discrimination.
We need not address these additional arguments, for dismissal of a claim for failure to comply with
Tenn. Code. Ann. § 41-21-801, et seq., should preclude further consideration of the merits of the
claim by the trial court. Any findings resulting from that consideration are therefore without legal
effect.

                                                IV.

        The dismissal of the plaintiff’s claim is affirmed, but without prejudice. Remand this cause
to the Circuit Court of Davidson County for further proceedings consistent with this opinion. Tax
the costs on appeal to the appellant.




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