                                                                                         01/28/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                          Assigned on Briefs January 7, 2019

      GERALD A. SANFORD, SR. v. TENNESSEE DEPARTMENT OF
                     CORRECTION ET AL.

                  Appeal from the Circuit Court for Wayne County
                        No. 4727     Robert L. Jones, Judge
                     ___________________________________

                           No. M2018-00860-COA-R3-CV
                       ___________________________________


An inmate housed in a private prison filed a complaint naming several defendants
including the Tennessee Department of Correction, the owner of the prison, and the
owner’s employees. The complaint alleged several causes of action, including various
violations of his constitutional rights, defamation, and breach of contract. All defendants
filed motions to dismiss averring that the inmate failed to state any claims for which
relief could be granted, and that the inmate failed to comply with the procedural
requirements applicable to inmates bringing civil claims in forma pauperis. We affirm as
modified.

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

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and ANDY D. BENNETT, JJ., joined.

Gerald A. Sanford, Sr., Clifton, Tennessee, Pro se.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein,
Solicitor General; Jennifer Brenner, Senior Assistant Attorney General, for the appellees,
Tennessee Department of Correction and Robert Cole Turman.

James I. Pentecost and J. Austin Stokes, Jackson, Tennessee, for the appellees,
CoreCivic, Danny Dodd, Cinthia J. Kelley, Shane McClain, Scott Peeler, Brenda
Pevahouse, Leigh Staggs, Daniel V. Toler, Tonya Warner, and Bruce Woods.
                                   MEMORANDUM OPINION1

                                              Background

        This is an inmate lawsuit that was brought based on events that allegedly
transpired within the South Central Correctional Facility (“SCCF”) in Wayne County,
Tennessee. SCCF is a private facility that is operated by CoreCivic. At all times relevant
to this appeal, Petitioner/Appellant Gerald A. Sanford, Sr. (“Mr. Sanford”) was housed at
SCCF. Mr. Sanford filed his original complaint with the Wayne County Circuit Court
(“trial court”) on October 18, 2017, naming CoreCivic, several CoreCivic employees, the
Tennessee Department of Correction (“TDOC”), and TDOC employee Robert Turman
(collectively “Appellees” or “Respondents”) as defendants. The complaint spanned
nearly five-hundred paragraphs, but the allegations contained therein were essentially
based upon a handful of incidents in which Mr. Sanford alleged that his constitutional
rights were violated, or that a tort was committed against him by SCCF employees.

       Specifically, Mr. Sanford discussed an incident in which he was taken to
administrative segregation and, while he was gone, several pieces of property were taken
from his cell. Mr. Sanford faulted the correctional officers of SCCF for allowing this to
occur. Mr. Sanford also alleged that he was improperly dismissed from his job in the
SCCF kitchen due to pleading guilty to a disciplinary infraction involving his possession
of a cell phone. Moreover, Mr. Sanford described a series of incidences in which he
attempted to file inmate grievances regarding his missing property and other various
issues, and those grievances were confiscated by an employee of CoreCivic. Overall, Mr.
Sanford appears to allege that because of his grievances and because he is well-known in
the facility as being a “grievance writer,” the employees of CoreCivic were retaliating
against Mr. Sanford. In buttressing his allegation of retaliation, Mr. Sanford describes
several other disagreements with SCCF staff, including being denied access to a toilet,
being denied access to the SCCF library, and being placed in an upper level cell despite
Mr. Sanford’s contention that he has a medical designation mandating that he only be
placed in first floor cells. Mr. Sanford also insisted that one of the SCCF correctional
officers made defamatory remarks about Mr. Sanford to other inmates. Mr. Sanford urged
that the foregoing events resulted in violations of his rights to due process and freedom
from cruel and unusual punishment.


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

          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.

                                                   -2-
        Accordingly, Mr. Sanford asserted in his complaint that he was entitled to relief
based upon 42 U.S.C. § 1983, the First, Fifth, Eighth, and Fourteenth Amendments,
common law defamation, breach of a third party contract, and other various federal
statutes. CoreCivic and its employees responded to the claim with a motion to dismiss
filed November 27, 2017. Therein, CoreCivic argued that Mr. Sanford had not only failed
to state a claim for which relief could be granted, but also that Mr. Sanford had failed to
comply with certain necessary procedural requirements. Namely, because Mr. Sanford
was an inmate proceeding in forma pauperis, CoreCivic argued that Mr. Sanford was
required to file an affidavit detailing his previous lawsuits, as well as a copy of his inmate
trust account. See Tenn. Code Ann. § 41-21-805. Soon after, TDOC and Mr. Turman also
filed a motion to dismiss, making largely the same allegations as CoreCivic and also
urging that TDOC was protected by sovereign immunity.

       The trial court entered an order of dismissal on April 17, 2018, adopting the
Respondents’ position that (1) Mr. Sanford failed to state a colorable claim for relief as to
any of the defendants; and (2) even if Mr. Sanford had stated a claim for which relief
could be granted, Mr. Sanford’s failure to comply with Tenn. Code Ann. section 41-21-
801 et. seq. warranted dismissal of the complaint. The petition was dismissed, and Mr.
Sanford filed a timely notice of appeal with this Court on May 10, 2018.

                                     Issues Presented

        Mr. Sanford raises a multitude of issues for review, which have been taken from
his brief and slightly restated:

       1. Whether the trial court erred in concluding that Mr. Sanford failed to cite
       statutes and theories sufficient to prevail on his claims.
       2. Whether the trial court erred in concluding that Mr. Sanford failed to properly
       allege any constitutional claims.
       3. Whether the trial court erred in concluding that Mr. Sanford failed to properly
       plead a breach of third-party beneficiary contract claim.
       4. Whether the trial court erred in concluding that Mr. Sanford failed to state a
       claim.
       5. Whether the trial court erred in concluding that Mr. Sanford failed to comply
       with Tennessee Code Annotated section 41-21-805.
       6. Whether the trial court erred in concluding that Mr. Sanford failed to comply
       with Tennessee Code Annotated section 41-21-807.
       7. Whether the trial court erred in concluding that Mr. Sanford failed to establish
       that TDOC is not immune from civil suit.
       8. Whether the trial court erred in concluding that Mr. Sanford failed to state a
       claim for which relief could be granted against Robert Turman.
       9. Whether the trial court erred in concluding that Mr. Sanford has outstanding
       court costs.
                                             -3-
In their posture as the appellees, the Respondents have raised essentially one issue for
review:

       10. Whether the trial court correctly dismissed Mr. Sanford’s complaint for failure
       to state a claim and failure to comply with Tenn. Code Ann. section 41-21-801 et.
       seq.

                                    Standard of Review

       This case was decided on a motion to dismiss. A motion to dismiss “challenges
‘only the legal sufficiency of the complaint, not the strength of the plaintiff’s proof or
evidence.’” Phillips v. Montgomery Cty., 442 S.W.3d 233, 237 (Tenn. 2014) (quoting
Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn.
2011)). The defendant “‘admits the truth of all the relevant and material allegations
contained in the complaint, but . . . asserts that the allegations fail to establish a cause of
action.” Id. (quoting Webb, 346 S.W.3d at 426). Our determination is based on the
pleadings alone. Id. We review the trial court’s decision on a motion to dismiss de novo
with no presumption of correctness. Id. (citing Cullum v. McCool, 432 S.W.3d 829, 832
(Tenn. 2013)).
                                         Discussion

       As a threshold issue, we must note that Mr. Sanford proceeds pro se in this appeal,
as he did in the trial court. As this Court has previously explained:

              Parties who decide to represent themselves are entitled to fair and
       equal treatment by the courts. The courts should take into account that
       many pro se litigants have no legal training and little familiarity with the
       judicial system. 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. Thus, the courts must not excuse pro se litigants from complying
       with the same substantive and procedural rules that represented parties are
       expected to observe.
              The courts give pro se litigants who are untrained in the law a certain
       amount of leeway in drafting their pleadings and briefs. Accordingly, we
       measure the papers prepared by pro se litigants using standards that are less
       stringent than those applied to papers prepared by lawyers.
               Pro se litigants should not be permitted to shift the burden of the
       litigation to the courts or to their adversaries. They are, however, entitled to
       at least the same liberality of construction of their pleadings that Tenn. R.
       Civ. P. 7, 8.05, and 8.06 provide to other litigants. Even though the courts
       cannot create claims or defenses for pro se litigants where none exist, they
                                              -4-
       should give effect to the substance, rather than the form or terminology, of
       a pro se litigant’s papers.
Hessmer v. Hessmer, 138 S.W.3d 901, 903–04 (Tenn. Ct. App. 2003) (citations omitted).
We keep these principals in mind in considering Mr. Sanford’s appeal. Because we have
determined that the dispositive issue presented is whether Mr. Sanford complied with
Tennessee Code Annotated section 41-21-801 et seq., we begin with a brief overview of
those sections relevant to this case.
       Tennessee Code Annotated section 41-21-801 provides that:

       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.

Tenn. Code Ann. § 41-21-805(a). This section and its surrounding statutory provisions
apply to claims “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.” Tenn.
Code Ann. § 41-21-801. The plaintiff must also file along with the affidavit of indigency
a “current copy of the inmate’s trust account.” Tenn. Code Ann. § 41-21-805(c). See also
Tenn. Code Ann. § 41-21-807(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[.]”).

                                            -5-
        The purpose of section 41-21-805 is “to counter some of the abuses that arise
when inmates exercise their rights to file lawsuits in forma pauperis.” Fields v. Corr.
Corp. of Am., No. M2011-01344-COA-R3-CV, 2012 WL 987337, at *2 (Tenn. Ct. App.
Mar. 21, 2012) (quoting Sweatt v. Tennessee Dep’t of Correction, 99 S.W.3d 112, 114
(Tenn. Ct. App. 2002)). Indeed, “one of the ways in which [section] 41-21-801 et
seq. counters the abuses of inmates seeking to proceed in forma pauperis is that it
requires inmates to provide an affidavit containing information regarding all previous
lawsuits.” Fields, 2012 WL 987337, at *2. The statutory scheme is intended 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.” Williams v.
Bell, 37 S.W.3d 477, 479 (Tenn. Ct. App. 2000).

       This Court has acknowledged that dismissal of the complaint is proper in the face
of a petitioner’s noncompliance with section 41-21-805. Williams, 37 S.W.3d at 480
(affirming the lower court’s dismissal of the complaint based upon petitioners failure to
comply with Tenn. Code Ann. section 41-21-805); Fields, 2012 WL 987337, at *2
(determining that the trial court acted properly by dismissing the petition upon the
motions of the respondents because petitioner failed to comply with the requirements of
Tenn. Code Ann. section 41-21-805); Roberson v. Lindamood, No. M2016-01797-COA-
R3-CV, 2017 WL 2304697, at *3 (Tenn. Ct. App. May 26, 2017) (concluding that the
petitioner failed to comply with the statute when he did not disclose his previous habeas
corpus lawsuits in his affidavit, and thus the trial court properly dismissed his claims).

       In the present case, Mr. Sanford filed his complaint with the trial court and
included an affidavit of indigency, but failed to include both an affidavit regarding his
prior lawsuits2 and a certified copy of his inmate trust account. See Tenn. Code Ann. §
41-21-805 (“Any inmate who files a claim with an affidavit of inability to pay costs shall
file a separate affidavit with the following information . . .”) (emphasis added). On
appeal, Mr. Sanford insists that he indeed filed these documents with the trial court, and
that the dismissal of his claims on this basis is reversible error. After a thorough review
of the record, however, we have determined that the record simply does not contain any
affidavit that details Mr. Sanford’s prior lawsuits, nor are documents pertaining to Mr.
Sanford’s inmate trust account included in the record.3 It appears that Mr. Sanford may
have confused his affidavit of indigency with the other documents required by the statute.
As an initial matter, section 41-21-805 specifically states that the information required by
that section should be provided in “a separate affidavit.” Tenn. Code Ann. § 41-21-

        2
          TDOC avers that Mr. Sanford is a “prolific litigator” and that the Attorney General’s office has
defended against six prior lawsuits filed by Mr. Sanford.
        3
          Even assuming that Mr. Sanford could supplement his complaint with the required documents,
we must conclude that he has failed to do so. C.f. Adams v. Tenn. Dep’t of Corr., No. M2005-00471-
COA-R3-CV, 2007 WL 1574277, at *4 (Tenn. Ct. App. May 30, 2007) (noting that the petitioner had
multiple opportunities to file the requisite affidavit, and in light of his “repeated failures to furnish the
court with the affidavit[,]” dismissal of the petitioner’s complaint was proper).
                                                   -6-
805(a). Moreover, the affidavit filed by Mr. Sanford contains no information concerning
his prior lawsuits or trust account. Rather, the affidavit of indigency states only that

       I, [Mr.] Sanford [], do solemnly swear (or affirm) that because of my
       poverty, I am unable to bear the expense of this action which I am about to
       commence. I followed or attempted to follow all procedures and established
       my claims. I further swear (or affirm) that, to the best of my knowledge, I
       am justly entitled to the relief sought.

Accordingly, this affidavit is not a substitute for the affidavit required by section 41-21-
805. The trial court’s dismissal of Mr. Sanford’s complaint on the basis of section 41-21-
805 was therefore proper.

        We note that trial court did not rely solely on section 41-21-805 in dismissing Mr.
Sanford’s petition; rather, it also considered all of Mr. Sanford’s claims and dismissed
each of them on the merits.4 Nonetheless, we need not consider the ruling of the trial
court as to those individual issues; in Williams, we concluded that it was unnecessary to
consider the remainder of the issues raised on appeal, as the plaintiff’s “failure to comply
with Tenn. Code Ann. § 41-21-801, et. seq., [precluded] further consideration of the
merits of the claim by the trial court[,]” and that “[a]ny findings resulting from that
consideration [were] therefore without legal effect.” Id. at 480481. See also Bradfield v.
Dukes, No. W2001-02067-COA-R3-CV, 2002 WL 1760237, at *3 (Tenn. Ct. App.
Apr.17, 2002) (“Because the trial court should have dismissed Mr. Bradfield’s petition
for his failure to comply with Tenn. Code Ann. § 41-21-801, et seq., it was not necessary
for the court to consider the merits of Mr. Bradfield’s claim. . . . [t]hose rulings by the
trial court are without legal effect.”). Consequently, we conclude that Mr. Sanford’s
failure to comply with section 41-21-805 “precludes further consideration of the merits”
of Mr. Sanford’s claims, as any findings resulting from the trial court’s consideration of
those issues are “without legal effect.” Williams, 37 S.W.3d at 481. As such, all other
issues raised in this appeal are pretermitted.

       Finally, we note that the dismissal of Mr. Sanford’s petition must be without
prejudice:

       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

       4
       The trial court’s order of dismissal is, in large part, taken verbatim from the Respondents’
memorandums in support of their motions to dismiss.
                                               -7-
       both legislative goals by ruling that dismissal for failure to comply with the
       statute is without prejudice.

Williams, 37 S.W.3d at 480; see also Tenn. Sup. Ct. R. 4(G)(2) (“Opinions reported in
the official reporter . . . shall be considered controlling authority for all purposes unless
and until such opinion is reversed and modified by a court of competent jurisdiction.”).
As such, the trial court’s decision is modified to reflect that Mr. Sanford’s petition is
dismissed without prejudice solely on the basis of his failure to comply with Tennessee
Code Annotated section 41-21-805 et seq.

                                        Conclusion

        The judgment of the Wayne County Circuit Court is affirmed, as modified. The
petition at issue is dismissed without prejudice. This cause is remanded to the trial court
for all further proceedings as are necessary and consistent with this Opinion. Costs of this
appeal are taxed to the Appellant, Gerald A. Sanford, Sr. for which execution may issue
if necessary.



                                                  _________________________________
                                                  J. STEVEN STAFFORD, JUDGE




                                            -8-
