                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                             Assigned on Briefs January 12, 2004

                JAMES RAY BARTLETT v. GAIL CORDER, ET AL.

                       Appeal from the Circuit Court for Lincoln County
                          No. C0200217     L. Craig Johnson, Judge



                      No. M2003-00863-COA-R3-CV - Filed June 17, 2004


An inmate who was convicted and sentenced for passing worthless checks filed suit against six
officers of the court for conspiracy, violation of his constitutional rights, and various derelictions of
duty. The plaintiff asked the trial court to sanction the defendants by impeachment and/or
disbarment. He also asked for $33 million in monetary damages. The trial court dismissed the
Complaint for failure to state a claim for which relief can be granted. We affirm.


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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J.,
M.S., and FRANK G. CLEMENT , JR., J., joined.

James Ray Bartlett, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Heather C.
Ross, Senior Counsel, for the Appellees, Judge Charles Lee, Assistant District Attorneys General
Charles Grubb, Ann Filer and Weakley E. Barnard and Randall E. Self.

Jeffrey M. Beemer; Jennifer L. Gremillion, Nashville, Tennessee, for the appellee, Gail Corder.
                                          MEMORANDUM OPINION1

                                            I. WORTHLESS CHECKS

       In June of 2001, James Ray Bartlett plead guilty in the General Sessions Court of Lincoln
County to two misdemeanor counts of passing worthless checks. He was sentenced to two
consecutive terms of imprisonment of 11 months and 29 days each. Mr. Bartlett has a long history
of criminal behavior and convictions, including theft, aggravated assault, aggravated burglary and
larceny. See State v. Bartlett, No. M2001-02419-CCA-R3-CD, 2002 WL 31158616 (Tenn. Crim.
App. Sept. 20, 2002) (no Tenn. R. App. P. 11 application filed).

         Mr. Bartlett appealed his sentences to the Circuit Court. A sentencing hearing was conducted
in that court on September 18, 2001. Following the hearing, the trial judge modified the sentences
so they could be served concurrently with each other at 75%. Mr. Bartlett was on parole at the time
he passed the worthless checks, and the Circuit Court affirmed the General Sessions Court’s
determination that the new sentences were to be served consecutively to his pending unexpired
sentences.

         On September 20, 2002, Mr. Bartlett filed the instant Complaint in forma pauperis, which
he titled “Civil Conspiracy to Violate State Statutory Law.” The body of the Complaint accuses the
court personnel who were involved in his sentencing proceeding of conspiracy, violating his
constitutional rights, malicious prosecution and other wrongs. He named as defendants Circuit Court
Judge Charles Lee; Clerk of the Lincoln County Courts Gail Corder; Assistant District Attorneys
Weakley Barnard, Charles Grubb, and Ann Filer; and Mr. Bartlett’s own court-appointed counsel,
Randall Self. He asked that the defendants be impeached and/or disbarred and reported to the Board
of Professional Responsibility for disciplinary action. Mr. Bartlett also asked for compensatory
damages of over $11 million and punitive damages of over $22 million.

         The State filed a Motion under Tenn. R. Civ. P. 12.02(6) to dismiss the Complaint for failure
to state a claim for which relief can be granted. Ms. Corder filed a separate Motion to Dismiss on
the same ground. Judge L. Craig Johnson was appointed by the Supreme Court to sit by interchange
and hear the case. Following a hearing, the Motion was granted. This appeal followed.




       1
           Tenn. R. Ct. App. 10 states:

       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.

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                                   II. AN ALLEGED CONSPIRACY

        We need not spend too much time discussing the factual predicate for Mr. Bartlett’s claims.
It appears to us that the irregularities the plaintiff complains of are mere clerical errors that do not
appear to have any relationship to the injuries he claims to have suffered. For the sake of
completeness, however, we will attempt to the best of our understanding to describe the facts that
led to his allegation of conspiracy.

        Mr. Bartlett had been charged with three other misdemeanors in the General Sessions Court
aside from the two counts of passing worthless checks: theft under $500, deceptive business
practices, and filing a false report with the police. After a hearing, the court found him guilty of
those charges. No plea was negotiated on the worthless check charges, but Mr. Bartlett chose to
plead guilty to them.

        The parties do not dispute that on June 18, 2001, Mr. Bartlett filed a Notice of Appeal in the
Circuit Court of Lincoln County. The General Sessions charges each carried a different number, but
the Notice of Appeal referenced all five. The Circuit Court Clerk assigned a new number,
S0100037, to Mr. Bartlett’s case.

       Assistant District Attorney Charles Grubbs told Gail Corder that Mr. Bartlett could not
appeal his conviction on the worthless check charges because he had voluntarily pleaded guilty to
them. She accordingly amended the notice by applying white-out to the docket numbers of the
worthless check charges. This act was the source of Mr. Bartlett’s accusation that Ms. Corder was
attempting to find “justice in a bottle of whiteout.”

       On September 4, 2001, the District Attorney moved the Circuit Court to dismiss all pending
charges on case number S0100037, because the DA wanted to avoid a jury trial in Circuit Court.
The charges were dismissed, and as a result, the Notice of Appeal appeared to have become moot.

        At the urging of Mr. Self, the plaintiff’s court appointed counsel, Mr. Bartlett filed a new
Notice of Appeal on September 10, 2001, which only referenced the worthless check charges. The
District Attorney filed a Motion to Dismiss the appeal on the ground of late-filing of the Notice. At
the beginning of a hearing in Circuit Court on September 18, 2001 Mr. Self informed the court that
a timely Notice of Appeal had in fact been filed on June 18. The D.A. then dropped his Motion to
Dismiss, and the hearing went forward on the question of sentencing. Mr. Bartlett testified at length
about the circumstances surrounding his use of the disputed checks. As we stated above the trial
court affirmed sentences of eleven months and twenty-nine days for each charge, but ruled that they
were to run concurrently rather than consecutively.

        Mr. Bartlett argues in this appeal that the District Attorney actually dismissed all the charges
against him on September 4, including his conviction for passing worthless checks, that Mr. Self
coerced him into filing a Notice of Appeal to revive the void charges against him, and that the Judge,
the District Attorneys, the Court Clerk and the defense attorney were all participants in a grand


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conspiracy to reinstate his convictions, with the Clerk’s unauthorized use of white-out on his Notice
of Appeal serving as a tell-tale indication of their sinister design.

        The defense argues to the contrary that the dismissal of the pending charges against Mr.
Bartlett on September 4 had the purpose, and the effect, of voiding only the three charges that he had
resisted in General Sessions. They observe that the worthless check charges could not have been
voided since those charges were not “pending,” but were unappealable final convictions as a result
of his guilty plea. They also assert that Mr. Self had acted to preserve Mr. Bartlett’s right to appeal
his sentences, not as part of a conspiracy to violate his rights.

        As we indicated above, we agree with the defendants’ argument. The appellant admitted in
his reply brief that the defendants had made a “misstake” in dealing with his appeal. He contends
that “[t]he appellees all conspired to fix the misstake by finding ‘justice in a bottle of whiteout’
which is a judicial travesty.” It appears to us, however, that while it is very important to avoid
mistakes or ambiguities in judicial proceedings, the occurrence of such mistakes does not raise an
inference of conspiracy without more specific evidence.

        In the face of a Tenn. R. Civ. P. 12.02(6) Motion, the trial court is required to take all the
plaintiff’s well-pleaded, material factual allegations as true, construing the complaint liberally in his
favor. See Fletcher v. Bd. of Prof’l Responsibility, 915 S.W.2d 448, 450 (Tenn. Ct. App. 1995);
Sullivant v. Americana Homes, Inc., 605 S.W.2d 246, 249 (Tenn. Ct. App. 1980). However, a bare
claim of conspiracy is not the sort of material factual allegation that is entitled to a presumption of
truth. Rather, it is a legal conclusion and must be supported by alleged facts which if proven true
would be sufficient to support a finding of conspiracy.

        We note that an actionable civil conspiracy has been defined as “a combination of two or
more persons who, each having the intent and knowledge of the other’s intent, accomplish by concert
an unlawful purpose, or accomplish a lawful purpose by unlawful means, which results in damage
to the plaintiff.” Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 67 (Tenn. 2001). It appears
to us that none of the facts alleged by the plaintiff indicate the intent, knowledge, or concerted action
required to make out a claim for conspiracy. We also do not think that he has been damaged by the
actions of the defendants, since they resulted in reductions in the total time he will have to serve.
We therefore affirm that trial court’s finding that the plaintiff failed to state a claim for which relief
can be granted, and its dismissal of his complaint.

                               III. IMMUNITY AND OTHER DEFENSES

       Even if there had been sufficient specificity in Mr. Bartlett’s allegations of conspiracy, he
would still not have been entitled to relief on his claims because of various forms of immunity and
other defenses that were designed to preserve the integrity of our judicial system.

       For example, official misconduct and official oppression are defined as offenses under the
criminal code. See Tenn. Code Ann. §§ 39-16-402, - 403. When they are proven, the offender is


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subject to criminal penalties. Those offenses do not, however, give rise to a private right of action.
Buckner v. Carlton, 623 S.W.2d 102, 105 (Tenn. Ct. App. 1981). Similarly, violations of the Code
of Professional Responsibility subject the violator to disciplinary action, but do not create a private
right of action in Tennessee. Lazy Seven Coal Sales, Inc. v. Stone & Hinds, 813 S.W.2d 400, 404-
405 (Tenn. 1991).

        Malicious prosecution is one wrong for which there is, in fact, a civil remedy. See Kelley v.
Tomlinson, 46 S.W.3d 742 (Tenn. Ct. App. 2000). But one requirement that a plaintiff must
establish before he is entitled to relief is that the prior action was terminated in his favor. Roberts
v. Fed. Express Corp., 842 S.W.2d 246, 247 (Tenn. 1992). Since Mr. Bartlett plead guilty to and
was convicted of the crime for which he was prosecuted, the prior action was not terminated in his
favor, and thus his claim for malicious prosecution was properly dismissed.

         Judge Lee is entitled to absolute judicial immunity for any acts that were performed pursuant
to his judicial role and in accordance with his jurisdiction. See Heath v. Cornelius, 511 S.W.2d 683
(Tenn. 1974). As our Supreme Court said in that case,

       The rule (of judicial immunity) was created not for the benefit of the individual
       judge, but for the benefit of the people; the doctrine protects the judiciary from
       vexatious lawsuits by dissatisfied litigants, thus avoiding a trend which would
       ‘contribute not to principled and fearless decision making but to intimidation.’

511 S.W.2d at 685 (quoting Pierson v. Ray, 386 U.S. 547 (1967)).

        For similar reasons, the three defendant district attorneys named by the appellant are entitled
to prosecutorial immunity for their acts in prosecuting this criminal case. See Imbler v. Pachtman,
424 U.S. 409, 420 (1976); Willett v. Ford, 603 S.W.2d 143, 146 (Tenn. Ct. App. 1979).

       The common law immunity of a prosecutor is based upon the same considerations
       that underlie the common law immunities of judges and grand jurors acting within
       the scope of their duties. These include concern that harassment by unfounded
       litigation would cause a deflection of the prosecutor’s energies from his public
       duties, and the possibility that he would shade his decisions instead of exercising the
       independence of judgment required by his public trust.

Buckner, 623 S.W.2d at 104-105 (quoting Imbler, 224 U.S. at 422-23.)

        With regard to Ms. Corder, the court clerk, we note that the courts of Tennessee and of other
states have extended the doctrine of judicial immunity to persons other than judges. Miller v.
Niblack, 942 S.W.2d 533, 537 (Tenn. Ct. App. 1996). Courts have long recognized the “danger that
disappointed litigants, blocked by the doctrine of absolute judicial immunity from suing the judge
directly, will vent their wrath on clerks, court reporters, and other judicial adjuncts. . . . ” Scruggs
v. Moellering, 870 F.2d 376, 377 (7th Cir. 1989). Therefore, courts have held that where auxiliary


                                                  -5-
court personnel, such as court clerks, perform functions integral to the judicial process or act
pursuant to a judge’s or court’s order, they are entitled to absolute quasi-judicial immunity. See, e.g.,
Kincaid v. Vail, 969 F.2d 594, 601 (7th Cir. 1992); Rogers v. Bruntrager, 841 F.2d 853, 856 (8th
Cir. 1988); Smith v. Rosenbaum, 460 F.2d 1019 (3d Cir. 1972); Niblack, 942 S.W.2d at 537;
Chapman v. Kelley, No. M2001-00928-COA-R3-CV, 2002 WL 1974136 (Tenn. Ct. App. Aug. 28,
2002), (perm. app. denied Dec. 23, 2002).

        Mr. Bartlett’s grievance against Court Clerk Gail Corder is solely based upon the fact that
she whited out the two case numbers on his Notice of Appeal. We need not determine whether that
act was part of the clerk’s functions that are integral to the judicial process, and, therefore, whether
Ms. Corder is entitled to judicial immunity. That is because insofar as Mr. Bartlett may be claiming
that the clerk’s action amounted to participation in the conspiracy against him, the dismissal of the
conspiracy claim forecloses any such claim against her. If he is claiming that she is guilty of official
misconduct or of official oppression, that claim too is without merit, for as we stated above, there
is no private right of action for such wrongs.

         Finally, Mr. Bartlett’s attorney, Mr. Self, does not enjoy the same immunities as state judicial
officials, but the claim against him is equally without merit. Mr. Bartlett complains that Mr. Self
advised him to file another Notice of Appeal on the worthless check charges, and that he did not take
action when he heard the clerk’s testimony that she had whited out the numbers of those charges on
his first Notice of Appeal.

        Mr. Bartlett’s argument is obviously based on the theory that if Mr. Self had properly
exploited the clerical error of the Court Clerk, the appellant could have avoided having to serve his
sentence. This is a dubious theory at best, as the District Attorney’s dismissal of the pending charges
against him did not include his convictions for passing worthless checks. The fact that the docket
numbers for those convictions had already been removed from the Notice of Appeal only reinforces
the District Attorney’s contention.

        By encouraging him to file another Notice of Appeal, Mr. Self protected Mr. Bartlett’s right
to appeal his sentence, and the result was an amelioration of that sentence. It thus appears to us that
Mr. Bartlett was not injured by Mr. Self’s actions, and thus that the appellant failed to state a claim
against his attorney for which relief could be granted.

                                          IV. CONCLUSION

       The judgment of the trial court is affirmed. We remand this case to the Circuit Court of
Lincoln County for further proceedings consistent with this opinion. Tax the costs on appeal to the
appellant, James Ray Bartlett.


                                                        ___________________________________
                                                        PATRICIA J. COTTRELL, JUDGE


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