                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                         Assigned on Briefs November 25, 2005

            KENNETH B. WHITE v. DR. WILLIAM BACON, ET AL.

                     Appeal from the Circuit Court for Davidson County
                           No. 02C-3644     Walter Kurtz, Judge



                  No. M2004-02110-COA-R3-CV - Filed January 26, 2006


Inmate filed a medical malpractice and negligence action against Defendants involved in his care
following a slip-and-fall injury at the prison and Defendants involved in the maintenance of the
prison. The trial court dismissed all named Defendants and inmate appeals. We affirm the decision
of the trial court in all respects.


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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL and FRANK
G. CLEMENT , JR., JJ., joined.

Kenneth B. White, Clifton, Tennessee, pro se.

Bryan Essary and Kelly R. Thomas, Nashville, Tennessee for the appellee, William Bacon, M.D.

George A. Dean, Nashville, Tennessee, for the appellee, Dr. Robert Coble.

James I. Pentecost and Brandon O. Gibson, Jackson, Tennessee, for the appellees, Corrections
Corporation of America and Kevin Myers.

Jerry O. Potter and Stephen G. Smith, II, Memphis, Tennessee, for the appellee, Correctional
Medical Services, Inc.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; John H.
Sinclair, Jr., Sr. Counsel, for the appellees Bijuara Ramakrishaiah and Tennessee Department of
Correction and Commissioner Quenton White.

                                           OPINION
       Kenneth White (“White”) is an inmate in the custody of the Tennessee Department of
Correction (“TDOC”), confined at the South Central Correctional Facility (“SCCF”) in Clifton,
Tennessee. On December 22, 2001, White slipped and fell in the common area of his living unit.
He was thereafter transported to Wayne County Medical Center for evaluation, where he was
diagnosed with a fractured femur. White was then brought to the emergency room at Metropolitan
Nashville General Hospital.

        White was treated at Metropolitan Nashville General Hospital by William Bacon, M.D. (“Dr.
Bacon”), an orthopedic surgeon. Dr. Bacon ordered x-rays which revealed a displaced mid-shaft
fracture of White’s left femur below the tip of the stem of the femoral component from a left total
hip arthroplasty. On December 24, 2001, Dr. Bacon performed surgery to correct the injury to
White’s leg.

       White was discharged to the DeBerry Special Needs Facility on December 27, 2001, where
he remained until January 2, 2002, when he was returned to the SCCF. Upon his return to the SCCF,
White was placed under the care of Robert Coble, M.D. (“Dr. Coble”), a physician providing
medical services to Tennessee state inmates confined at the SCCF.

       On March 1, 2002, White began to complain about pain in his left leg. On March 6, 2002,
Dr. Coble ordered an x-ray of White’s leg which showed a possible abnormality. Dr. Coble made
an appointment at the Murfreesboro Bone and Joint Clinic for the following week and based on the
consultation, Dr. Coble ordered another surgery to perform open reduction and internal fixation of
White’s left hip.

        On April 7, 2002, White was escorted to Maury Regional Hospital for surgery performed by
Dr. Eslick Daniel (“Dr. Daniel”). On April 12, 2002, he returned from surgery at Maury Regional
and was admitted to the SCCF infirmary for observation and care under Dr. Coble. White returned
to the Bone and Joint Clinic on two occasions for follow-up appointments. During his December
5, 2002, appointment, Dr. Daniel determined that White required a one and a half inch lift for his left
shoe, which was attached on December 13, 2002.

       On December 20, 2002, White filed a medical malpractice action against Metropolitan
Nashville General Hospital, Dr. Bacon, and Dr. Coble in the Davidson County Circuit Court. White
claimed that Dr. Bacon was medically negligent in the performance of his initial surgery and that Dr.
Coble was negligent in his diagnosis and post-operative treatment.

       On June 26, 2003, White filed a motion to amend his complaint and an amended complaint.
The amended complaint named Corrections Corporation of America (“CCA”), a private corporation
under contract with the TDOC to operate the SCCF, and Kevin Myers (“Myers”), warden of the
SCCF. White claimed that CCA and Myers negligently maintained the floors in the SCCF, which
caused his fall. White also named Correctional Medical Services, Inc. (“CMS”), a private
corporation who contracted with the TDOC to provide medical care and treatment to prison inmates,
and Bijuara Ramakrishaiah (“Ramakrishaiah”), a physician’s assistant employed by the TDOC.



                                                 -2-
White asserted that CMS and Ramakrishaiah negligently failed to follow certain post-operative care
instructions which compounded his injuries.

        On February 26, 2004, White filed both a motion for leave to file a second amendment and
a second complaint, naming the TDOC and Commissioner Quenton White (“Commissioner White”).
White asserted that the TDOC and Commissioner White were made aware of White’s medical needs
but failed to see that he was provided medical care. On June 10, 2004, White filed a supplement to
his complaint alleging for the first time that Defendants’ conduct constituted deliberate indifference.

       On March 9, 2004, the trial court dismissed Defendants CCA and Myers based on their
August 21, 2003, motion to dismiss. The court found that White’s amended complaint, which
named CCA and Myers, violated Tennessee Rule of Civil Procedure 15.01 because the amended
complaint was filed after a responsive pleading but without court order or adverse party written
consent.

       On April 7, 2004, the trial court dismissed Defendant CMS based on its October 20, 2003,
motion to dismiss. The court determined that White’s claim for negligent post-operative care against
CMS was beyond the statute of limitations because White was aware of the alleged injury and
malpractice by March 2002, however, he did not file his suit against CMS until June 26, 2003.

       On May 7, 2004, the trial court dismissed Dr. Bacon based on his February 19, 2004, motion
for summary judgment. The court based its decision on White’s failure to submit any expert proof
to support his allegations of medical malpractice after Dr. Bacon provided expert proof negating
elements of White’s claim.

        On May 18, 2004, the trial court dismissed Defendants the TDOC, Commissioner White, and
Ramakrishaiah based on their March 29, 2004, motion for summary judgment. The court found that
the State and its officers were immune from White’s negligence action pursuant to Tennessee Code
Annotated sections 9-8-307 and 20-13-102.

        On August 17, 2004, the trial court dismissed White’s final Defendant, Dr. Coble, based on
his June 15, 2004, motion for summary judgment. The court based its decision on White’s failure
to respond to Dr. Coble’s motion, which presented expert proof negating elements of White’s claim.

        White filed a timely appeal. On appeal, White asserts that the trial court erred in (1) granting
Dr. Coble’s motion for summary judgment; (2) granting Dr. Bacon’s motion for summary judgment;
(3) denying his motion for appointment of counsel; (4) denying his motion for an evidentiary
hearing; (5) denying his motion for written depositions; (6) granting CCA and Myers’ motion to
dismiss; (7) granting CMS’ motion to dismiss; (8) granting the TDOC, Commissioner White and
Ramakrishaiah’s motion for summary judgment; (9) not accepting his supplemental complaint which
raised allegations of deliberate indifference; (10) denying his motion to stay proceedings and motion
to reconsider; and, (11) dismissing Defendants without reconsidering his Rule 60 motions.

                           I. Dr. Coble’s Motion for Summary Judgment


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        In reviewing a motion for summary judgment, the Court must examine the evidence and all
reasonable inferences from the evidence in the light most favorable to the non-moving party. Kelley
v. Middle Tenn. Emergency Physicians, P.C., 133 S.W.3d 587, 591 (Tenn.2004). The Court reviews
the record de novo with no presumption of correctness below. Kelley, 133 S.W.3d at 591. Summary
judgment is appropriate where the moving party demonstrates that there are no genuine issues of
material fact and that judgment may be rendered as a matter of law. Tenn.R.Civ.P. 56.04.

       The burden of proof a plaintiff must meet in order to maintain a cause of action for medical
malpractice is outlined in Tennessee Code Annotated section 29-26-115(a), which states:

       (a) In a malpractice action, the claimant shall have the burden of proving by evidence
       as provided by subsection (b):

       (1) The recognized standard of acceptable professional practice in the profession and
       the specialty thereof, if any, that the defendant practices in the community in which
       the defendant practices or in a similar community at the time the alleged injury or
       wrongful action occurred;

       (2) That the defendant acted with less than or failed to act with ordinary and
       reasonable care in accordance with such standard; and

       (3) As a proximate result of the defendant's negligent act or omission, the plaintiff
       suffered injuries which would not otherwise have occurred.

Tenn. Code Ann. § 29-26-115(a).




        In this case, Dr. Coble filed a motion for summary judgment on June 15, 2004, attaching
the affidavit of Dr. Donald Boatright. Dr. Boatright’s affidavit provided:

       3.      In my opinion, within a reasonable degree of medical certainty, Dr. Coble
               and the other health care providers complied with the standard of
               acceptable professional practice in their care and treatment of this plaintiff.

       4.      Within a reasonable degree of medical certainty, nothing that Dr. Coble or
               any other of the health care providers did or did not do caused the plaintiff
               any harm which would not otherwise have occurred to this plaintiff.

        Dr. Coble’s motion and Dr. Boatright’s attached affidavit therefore affirmatively negated two
essential elements of White’s medical malpractice claim. Once a party moving for summary
judgment establishes that there is no genuine issue of material fact, “the nonmoving party cannot
simply rely on his pleading, but must set forth specific facts showing that there is a genuine issue of


                                                 -4-
material fact for trial.” Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn.1993). White failed to respond
to Dr. Coble’s motion and as result, he failed set forth any specific facts showing that there was a
genuine issue for trial.

                          II. Dr. Bacon’s Motion for Summary Judgment

       Dr. Bacon’s motion for summary was supported by his own affidavit which stated in
pertinent part:

       10.     The care and treatment I provided to Mr. White complied with the recognized
               standard of acceptable professional practice applicable to orthopedic surgeons
               providing care to patients similar to Kenneth White, as that standard existed
               in Nashville and in similar communities during the time of his care.
       11.     The care and treatment I provided to Mr. White caused no harm or injury that
               otherwise would not have occurred.

        Dr. Bacon’s motion and affidavit therefore negated two essential elements of White’s claim
and shifted the burden to White to rebut Dr. Bacon’s expert proof. However, White submitted only
his own affidavit and various medical records in response to Dr. Bacon’s motion. It is well
established that expert testimony is required to establish the standard of care, a deviation from the
standard of care, and proximate causation in all medical malpractice actions except those in which
the alleged negligence is within “the common knowledge of laymen.” Phelps v. Vanderbilt Univ.,
520 S.W.2d 353, 357 (Tenn.Ct.App.1974). Only the most obvious forms of negligence fall within
the common knowledge exception. Ayers by Ayers v. Rutherford Hosp., Inc., 689 S.W.2d 155, 160
(Tenn.Ct.App.1984).

        The Tennessee Supreme Court has held that “in those malpractice actions wherein expert
testimony is required to establish negligence and proximate cause, affidavits by medical doctors
which clearly and completely refute plaintiff’s contention afford a proper basis for dismissal of the
action on summary judgment, in the absence of proper responsive proof by affidavit or otherwise.”
Bowman v. Henard, 547 S.W.2d 527, 531 (Tenn.1977). Because the alleged malpractice in this case
is not within “the common knowledge of laymen” and because White failed to submit any expert
testimony rebutting Dr. Bacon’s affidavit, the trial court properly granted Dr. Bacon’s motion for
summary judgment.

                 III. The Denial of White’s Motion for Appointment of Counsel

        White filed a motion for appointment of counsel on February 6, 2003. The circumstances
upon which White based his motion included his confinement at the SCCF, the lack of a law library
or trained legal aides at the SCCF, and limited access to the SCCF typewriter. The trial court denied
White’s motion on April 21, 2004, stating, “There are certainly exceptional cases where the Court
can use its authority pursuant to T.C.A. § 23-2-101 to appoint counsel in a civil case. The facts and
circumstances set out here are not sufficient for the Court to appoint counsel. The motion for
appointment is denied.”


                                                -5-
        Tennessee case law is clear that there is no absolute right to counsel in a civil trial, Memphis
Bd. of Realtors v. Cohen, 786 S.W.2d 951, 953 (Tenn.Ct.App. 1990), and the decision to appoint
counsel is well within the discretion of the trial court and may only be overturned upon a showing
of an abuse of discretion. State v. Rubio, 746 S.W.2d 732, 737 (Tenn.Ct.Crim.App.1987). Nothing
in the record reflects an abuse of discretion therefore, we find that the trial court did not err in
denying White’s motion for the appointment of counsel.

                    IV. The Denial of White’s Motions for Written Depositions

         White filed a Motion for Depositions on Written Questions Pursuant to Tennessee Rule of
Civil Procedure, Rule 31 to Dr. Coble and a Motion for Depositions on Written Questions Pursuant
to Tennessee Rule of Civil Procedure, Rule 31 to Dr. Bacon on May 24, 2004, which were docketed
for July 9, 2004. White also filed a Motion for Written Deposition of Dr. Robert Coble, a Motion
for Written Deposition of Dr. William Bacon, and a Motion for Written Deposition of Dr. Donald
Boatright on July 6, 2004, however, theses motions were never docketed.

        The trial court denied White’s motions on July 9, 2004, stating, “The Tennessee Rules of
Civil Procedure, including Tenn. R. Civ. P. 31, do not contemplate such motions. Accordingly, the
motions are denied.” Rule 31.01 of the Tennessee Rules of Civil Procedure provides:

       After commencement of the action, any party may take the testimony of any person,
       including a party, by deposition upon written questions. The attendance of witnesses
       may be compelled by the use of subpoena as provided in Rule 45. The deposition of
       a person confined in prison may be taken only by leave of court on such terms as the
       court prescribes.
       A party desiring to take a deposition upon written questions shall serve them upon
       every other party with a notice stating (1) the name and address of the person who is
       to answer them, if known, and if the name is not known, a general description
       sufficient to identify the person or the particular class or group to which the person
       belongs, and (2) the name or descriptive title and address of the officer before whom
       the deposition is to be taken. A deposition upon written questions may be taken of
       a public or private corporation or a partnership or association or governmental agency
       in accordance with provisions of Rule 30.02(6).
       Within 30 days after the notice and written questions are served, a party may serve
       cross questions upon all other parties. Within 10 days after being served with cross
       questions, a party may serve redirect questions upon all other parties. Within 10 days
       after being served with redirect questions, a party may serve recross questions upon
       all other parties. The court may for cause shown enlarge or shorten the time.

Tenn.R.Civ.P. 31.01.


       Clearly, there is no requirement that a motion be filed with the court in order to take a
deposition upon written questions pursuant to Rule 31.01 of the Tennessee Rules of Civil Procedure.


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Furthermore, White failed to designate the name, title, and address of the officer before whom the
depositions were to be taken as required by Rule 31.01. Therefore, we find that the trial court
properly denied White’s motions for written depositions.


                             V. CCA and Myers’ Motion to Dismiss


        White filed a motion to amend his complaint and an amended complaint on June 26, 2003,
which added CCA and Myers, among others, as Defendants. Defendants CCA and Myers filed a
motion to dismiss on August 21, 2003, claiming that White failed to comply with Rule 15.01 of the
Tennessee Rules of Civil Procedure and that White’s claim was barred by the statute of limitations.
The trial court granted CCA and Myers’ motion on March 9, 2004, based on a violation of Rule
15.01, stating in part:


       The plaintiff filed a Complaint on December 20, 2002, but he did not name [CCA or
       Myers] and did not explicitly state a slip-and-fall claim. Defendant Robert Coble,
       M.D., named in the original complaint, filed his answer on January 21, 2003. On
       June 26, 2003, the plaintiff filed both a motion to amend his original complaint and
       an Amended Complaint with accompanying witness affidavits. The Amended
       Complaint names Defendants CCA and Kevin Myers, among other new defendants,
       and states a negligence claim based on the alleged slip and fall. The motion to amend
       was never properly docketed, and therefore, no order allowing the amendment was
       ever entered ... The defendants’ motion to dismiss is premised on a violation of
       T.R.C.P. 15.01 and, in the alternative, on an alleged statute of limitations violation.
              In his response, the plaintiff argues that a liberal application of T.R.C.P. 15
       permits his amendment and that the claims in the Amended Complaint against the
       newly named defendants do not violate the statute of limitations.
               T.R.C.P. 15.01 states in pertinent part:
               A party may amend the party’s pleadings once as a matter of course
               at any time before a responsive pleading is served .... Otherwise a
               party may amend the party’s pleadings only by written consent of the
               adverse party or by leave of court; and leave shall be freely given
               when justice so requires.
       The defendants correctly assert that the Amended Complaint was filed after
       Defendant Coble answered the original complaint. Further, neither consent from
       CCA and/or Mr. Myers nor, as noted above, court order permitting amendment is
       present in the record.
              The Amended Complaint now before the Court violates T.R.C.P. 15.01. See
       Boyd v. Prime Focus, Inc., 83 S.W.3d 761, 767 (Tenn. Ct. App. 2001). The
       Amended Complaint was filed after a responsive pleading but without court order or
       adverse party written consent. The Court, finding that the Amended Complaint was


                                                -7-
       improperly filed, pretermits the statute of limitations issue. The claims against CCA
       and Kevin Myers are dismissed.


        In Boyd v. Prime Focus, Inc., 83 S.W.3d 761 (Tenn.Ct.App.2001), plaintiffs filed a suit
against defendant, Prime Focus. Much like White, plaintiffs amended their complaint adding two
new defendants after Prime Focus had filed its answer, without properly obtaining leave of court to
do so. Boyd, 83 S.W.3d at 767. The court stated:


              Plaintiffs’ final assertion is that the court in Boyd II erred when it found that
       Plaintiffs failed to secure leave of the court before amending their complaint against
       Prime Focus to join Dr. Bruce and D & C. As we understand it, Plaintiffs assert that
       they were not required to seek leave of the court to amend their complaint because,
       although an answer had been filed by Prime Focus, no answer had been filed by Dr.
       Bruce and D & C, to whom the amendments applied. This argument is without merit
       and reflects Plaintiffs’ misreading of the rules. Tenn. R. Civ. P. 15.01 permits a party
       to amend his complaint once as a matter of course before a responsive pleading is
       served. Once a responsive pleading has been filed by the named opposing party, that
       party's written consent or leave of the court is required for later amendments. See
       Robert Banks, Jr., et al., Tennessee Civil Procedure, § 5-7(d) (1999). Since the
       defendant in Boyd II, Prime Focus, had filed an answer, leave of the court was
       required for Plaintiffs to amend their complaint. The record shows that Plaintiffs
       improperly filed their amendment on March 10, 2000, before obtaining leave of the
       court to do so.

Boyd, 83 S.W.3d at 767.


        On appeal from an order granting a Rule 12 motion, an appellate court must presume that the
factual allegations in the complaint are true, and the appellate court must review the trial court’s
legal conclusions regarding the adequacy of the complaint without a presumption of correctness.
Cavnar v. State, 2003 WL 535915, No. M2002-00609-COA-R3-CV, at * 4, (Tenn.Ct.App. Feb. 26,
2003). Because White’s amended complaint was filed after Dr. Coble’s responsive pleading and
without either leave of court or the consent of CCA or Myers, as required by Rule 15.01 of the
Tennessee Rules of Civil Procedure, we find that the trial court did not err in dismissing White’s
claims against CCA and Myers.

                                   VI. CMS’ Motion to Dismiss

         CMS filed a motion to dismiss on October 20, 2003, claiming that White’s claims were
barred by the statute of limitations. The trial court granted CMS’ motion on April 7, 2004, stating
in part:


                                                 -8-
               In its motion, the defendant argues that the plaintiff’s claim for negligent
       post-operative care is beyond the applicable statute of limitations. In response, the
       plaintiff argues that T.R.C.P. 15.03 permits relation back of his amendment to the
       original complaint and that the claim in the Amended Complaint against CMS does
       not violate the statute of limitations.
               Actions for personal injuries generally must be brought within a year from the
       date of injury. Tenn. Code Ann. § 28-3-104 (a) (1). The statute of limitations does
       not accrue, however, until damages are discovered (or should be discovered through
       the exercise of reasonable diligence). See Shadrick v.Coker, 963 S.W.2d 726, 733
       (Tenn.1998). Taking all inferences in a light favorable to the plaintiff, the plaintiff
       knew of the alleged injury and malpractice by March, 2002; as noted above, the x-ray
       that revealed the first surgery’s failure was done on March 8, 2002, and the plaintiff
       articulated his claims for negligent post-operative care in his March 27, 2002
       grievance.
               The plaintiff did not file suit against CMS until June 26, 2003. The defendant
       therefore correctly asserts that the plaintiff’s claim against CMS is beyond the
       applicable statute of limitation. Furthermore, plaintiff’s argument that T.R.C.P.
       15.03 applies is without merit. There is no relation back when a new defendant, like
       CMS, is added after the limitations period has run. Rainey Bros. Constr. Co. v.
       Memphis and Shelby County Board of Adjustment, 821 S.W.2d 938, 941 (Tenn. Ct.
       App. 1991).
               The claim against CMS is dismissed.

         The record clearly reflects that White had knowledge of his alleged injuries on March 27,
2002, when he filed a grievance with the SCCF, however, he failed to assert his claim against CMS
until June 26, 2003, approximately three months outside the statute of limitations. However, White
asserts that his amended complaint relates back to the date he filed his original complaint. The court
in Rainey Bros. Constr. Co. v. Memphis and Shelby County Bd. of Adjustment, 821 S.W.2d 938, 941
(Tenn.Ct.App.1991), explained Rule 15.03 of the Tennessee Rules of Civil Procedure pertaining to
relation back, stating:


       The amendment of complaints is governed by Rule 15 of the Tennessee Rules of
       Civil Procedure. Rule 15.03 states:
               Rule 15.03 Relation Back of Amendments
               Whenever the claim or defense asserted in the amended pleadings
               arose out of the conduct, transaction or occurrence set forth or
               attempted to be set forth in the original pleading, the amendment
               relates back to the date of the original pleading. An amendment
               changing the party against whom a claim is asserted relates back if the
               foregoing provision is satisfied and if, within the period provided by
               law for commencing the action against him, the party to be brought
               in by amendment (1) has received such notice of the institution of the
               action that he will not be prejudiced in maintaining his defense on the

                                                 -9-
               merits, and (2) knew or should have known that, but for a misnomer
               or other similar mistake concerning the identity of the proper party,
               the action would have been brought against him. Except as above
               specified, nothing in this rule shall be construed to extend any period
               of limitations governing the time in which any action may be brought.


               Rule 15.03 sets forth two requirements which must be met in order for an
       amendment to change the parties against whom the claim is asserted. First, the new
       parties must have received such notice of the action that they will not be prejudiced
       in maintaining their defense. See Goss v. Hutchins, 751 S.W.2d 821, 824
       (Tenn.1988); Lease v. Tipton 722 S.W.2d 379, 380 (Tenn.1986) ... However, Rule
       15.03 requires more than merely that a potential new defendant be aware of the
       existence of the action prior to being made a party. The second requirement is that
       each potential new party must have known that but for a misnomer or mistake
       concerning his or her identity, the action would have been brought against him or her.
       Lease v. Tipton, supra. Furthermore, it has been held that the plaintiff has the burden
       of showing that the failure to name the new defendants in the original complaint
       resulted from a mistake concerning the identity of the proper parties. Smith v.
       Southeastern Properties, 776 S.W.2d 106 (Tenn.App.1989). A mistake within the
       meaning of Rule 15.03 does not exist simply because the party who may be liable for
       conduct alleged in the original complaint was omitted as a party defendant. Id. at 109.

Rainey Bros. Constr. Co., 821 S.W.2d at 941.


        White failed to present any evidence indicating that the failure to name CMS in his original
complaint resulted from a mistake concerning the identity of the proper parties, therefore, relation
back does not apply in this case and the trial court properly found that White was time-barred from
asserting his claim against CMS.


  VII. The TDOC, Commissioner White and Ramakrishaiah’s Motion for Summary Judgment


       Defendants the TDOC, Commissioner White, and Ramakrishaiah filed a motion for summary
judgment on March 29, 2004, claiming that the State and its officers were immune from White’s
action pursuant to Tennessee Code Annotated sections 9-8-307 and 20-13-102. The trial court
granted Defendants’ motion on May 18, 2004, stating in part:


               In their motion, the defendants first note that Defendant Ramakrishaiah, who
       holds a medical license in his native India, is employed as a physician’s assistant with
       Defendant TDOC. The defendants assert that the plaintiff’s negligence claims should
       be dismissed because the State’s officers and employees are immune from such
       negligence actions pursuant to Tenn. Code Ann. § 9-8-307. In response, the plaintiff

                                                -10-
       restates many of his factual allegations and merely reasserts that he did not receive
       the proper follow-up care after his first surgery, citing the medical records from his
       second, corrective surgery attached to his memorandum.
               The Court first notes that the plaintiff did not respond to the defendants’
       statement of undisputed facts as required by Tenn. R. Civ. Pro. 56.03. There is
       therefore no question that Defendant Ramakrishaiah was a physician’s assistant
       employed by the State of Tennessee during the relevant time period. The defendants
       correctly assert that they are immune from suit in this Court regarding the plaintiff’s
       claims of negligently failing to follow certain post-surgery medical instructions and
       of liability for the plaintiff’s slip and fall. Tenn. Code Ann. § 20-13-102(a) states,
       in relevant part:
               No court in the state shall have any power, jurisdiction, or authority
               to entertain any suit against the state, or against any officer of the
               state acting by the authority of the state, with a view to reach the state,
               its treasury, funds, or property, and all such suits shall be dismissed
               as to the state or such officers, on motion, plea, or demurrer of the
               law officer of the state, or counsel employed for the state.
       Moreover, the General Assembly explicitly has granted the Tennessee Claims
       Commission exclusive jurisdiction to hear claims of this ilk against state employees.
       See Tenn. Code Ann. § 9-8-307.
               The defendants’ motion for summary judgment is granted, and the claims
       against Defendants Bijuara Ramakrishaiah, Tennessee Department of Correction, and
       TDOC Commissioner Quenton White are dismissed.


        Under the plain language of Tennessee Code Annotated sections 9-8-307(a) and (h), the
Tennessee Claims Commission has exclusive jurisdiction over any claim of negligence against the
State based on the act or omission of a State officer or employee, therefore the trial court did not err
in granting summary judgment as to White’s negligence claim against Defendant Ramakrishaiah
because it is undisputed that he was at all times relevant to this matter, an employee of the TDOC.
Furthermore, Tennessee Code Annotated section 20-13-102 clearly establishes that the TDOC, as
an agency of the State, and Commissioner White, as an officer of the State, are immune from suit
in State court and thus, the trial court did not err in granting their motion for summary judgment.


                                 VIII. Deliberate Indifference Claim


        White filed a “Supplement to Complaint” on June 10, 2004, alleging for the first time that
Defendants’ conduct constituted deliberate indifference. The court briefly addressed the
“supplement” in its July 6, 2004, order where the court stated, “Plaintiff also filed a ‘supplement’
to his Complaint ... [T]here is no such pleading as a ‘Supplement to Complaint.’ In any event, the
supplement cannot be accepted as a proper amendment. See Tenn. R. Civ. P. 15.01.”


                                                  -11-
        The record shows that White failed to file a motion to amend his complaint, obtain leave of
court, or receive consent of the parties in order to amend his complaint a third time. We therefore
find that White failed to comply with Rule 15.01 of the Tennessee Rules of Civil Procedure and the
trial court properly denied acceptance of his “supplement” as a proper amendment.


        IX. The Denial of White’s Motion to Stay Proceedings and Motion to Reconsider


       The trial court entered an order on January 28, 2004, which stated in part:


               Given the fact that the plaintiff is an inmate in the custody of the Tennessee
       Department of Correction, all docketed motions with responses shall be determined
       by the Court without oral argument. Obviously, any docketed motion for which no
       response is filed shall be automatically granted. See Local Rule § 26.04(c).


       White contends that Defendants failed to respond to his Motion to Reconsider the Dismissal
of Defendants the TDOC, Commissioner White, and Ramakrishaiah filed on June 10, 2004, and his
Motion to Stay Proceedings filed on July 6, 2004. White asserts that based upon the trial court’s
January 28, 2004, order, the court erred in denying these motions.


        The Court believes that although the trial court cited Local Rule § 26.04(c), the court was
actually referring to Davidson County Local Rule § 26.04(d), which states:


       d. If the motion is opposed, a written response to the motion must be filed and
       personally served on all parties. The response shall state with particularity the
       grounds for opposition to the motion, supported by legal authority, if applicable. If
       no response is filed, the motion shall be granted with the exception of certain
       proceedings in Probate. (See Rule 39).

Tenn. R. Davidson Prac. Rule § 26.04(d).


        Rule 60.02(5) of the Tennessee Rules of Civil Procedure is intended to provide relief in only
the most unique, exceptional, or extraordinary circumstances. NCNB Nat’l Bank of N.C. v.
Thrailkill, 856 S.W.2d 150, 154 (Tenn.Ct.App.1993). Although Defendants the TDOC,
Commissioner White, and Ramakrishaiah failed to respond to White’s Rule 60 motion, in violation
of the court’s January 25, 2004, order, Defendants failure alone is insufficient to warrant such
extraordinary relief.




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        With respect to White’s motion to stay Dr. Coble’s motion for summary judgment, White
failed to support his motion with an affidavit as required by Rule 56.07 of the Tennessee Rules of
Civil Procedure. Any failure on behalf of Dr. Coble to respond to White’s motion cannot cure the
motion’s legal inadequacies. We therefore find that the trial court properly denied White’s motions.


                                    X. White’s Rule 60 Motions


         White filed a Motion for Relief from Order on March 18, 2004, and an Amended Motion for
Relief from Order on April 2, 2004, regarding the trial court’s dismissal of Defendants CCA and
Myers. White relied on Rules 60.01 and 60.02 in his motions, claiming that a clerical error resulted
in his motion to amend his complaint never being docketed and that his original complaint stated a
slip-and-fall action against CCA and Myers. The court denied White’s motions on May 7, 2004,
stating:


                The plaintiff moves the Court to reconsider its order granting dismissal of
       these defendants on two grounds. First, he asserts that his motion to amend would
       have been properly docketed but for a “clerical error.” Second, he argues that he, in
       fact, did state a slip-and-fall claim against these defendants in his first complaint and
       that, presumably, the amendment should be allowed to relate back.
              The Court declines the invitation to reconsider. The Court has previously
       considered these issues, and the motion to reconsider is denied.


         White filed another Rule 60 Motion for Relief from Order on April 23, 2004, regarding the
trial court’s dismissal of CMS. White claimed that the court applied the incorrect legal standard and
that CMS was named in his original complaint. The court entered an order on June 1, 2004, denying
White’s motion, stating:


              Before the Court is the plaintiff’s “Motion for Relief from Order” regarding
       the Court’s dismissal of defendants Correctional Medical Services, Inc. (“CMS”).
       The motion was filed on April 23, 2004. The defendants filed a response.
               The plaintiff asserts that CMS was one of the “unnamed defendants” in his
       original complaint. However, he did not specifically name CMS as a defendant until
       his amended complaint (filed over seven months after the original), and summons
       was not returned until another month after the amended complaint was filed.
               The motion is denied.


       White filed a third Motion for Relief from Order on June 10, 2004, regarding the dismissal
of Defendants the TDOC, Commissioner White, and Ramakrishaiah. White claimed that the court
applied the incorrect legal standard and that his claims against Defendants were based not on

                                                 -13-
negligence but on deliberate indifference as set forth in his “Supplement to Complaint,” filed the
same day as his third Motion for Relief from Order. The court denied White’s motion on July 6,
2004, stating:


              Before the Court is plaintiff’s motion to reconsider the dismissal of
       defendants Bijuara Ramakrishaiah, Tennessee Department of Correction (“TDOC”),
       and TDOC Commissioner Quenton White. Plaintiff filed a supporting memorandum.
       There were no responses to the motion. Plaintiff also filed a “supplement” to his
       Complaint. The motion was set on the June 25, 2004 docket.
               The Court declines the invitation to reconsider. The Court has previously
       considered the issues regarding these defendants. Further, there is no such pleading
       as a “Supplement to Complaint.” In any event, the supplement cannot be accepted
       as a proper amendment. See Tenn. R. Civ. P. 15.01.
               The motion to reconsider is denied.


        On appeal of a denial of a motion for relief under Rule 60 of the Tennessee Rules of Civil
Procedure, the appellate court may reverse the denial of the motion for relief only if the denial
amounts to an abuse of discretion. Toney v. Mueller Co., 810 S.W.2d 145, 147 (Tenn.1991). Rule
60 is not a mechanism for use by a party who is merely dissatisfied with the result of a particular
case. Toney, 810 S.W.2d at 146. It is meant to be used only in those few cases that meet one of more
of the criteria stated in the rule. Toney, 810 S.W.2d at 146. The burden of proof is on the one
seeking relief from a judgment under Tennessee Rule of Civil Procedure 60.02 to show the facts
giving rise to the relief. Holt v. Holt, 751 S.W.2d 426, 428 (Tenn.Ct.App.1988).


       White failed to set forth any of the criteria established in the Rule 60 to support his motions.
Nothing in the record reflects an abuse of discretion therefore we find that the trial court did not err
in denying White’s Rule 60 motions.

       The decision of the trial is affirmed in all respects. The costs of appeal are assessed against
Appellant.


                                                        ___________________________________

                                                        WILLIAM B. CAIN, JUDGE




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