             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                           FILED
                                                             May 29, 1998
DONALD R. McMAHAN,                      )
                                        )                 Cecil W. Crowson
       Petitioner/Appellant,            )                Appellate Court Clerk
                                        )    Appeal No.
                                        )    01-A-01-9711-CH-00681
VS.                                     )
                                        )    Davidson Chancery
                                        )    No. 97-163-III
CANDACE WHISMAN,                        )
TENNESSEE DEPARTMENT OF                 )
CORRECTION,                             )
                                        )
       Respondent/Appellee.             )


      APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE

            THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR




DONALD R. McMAHAN, #126698
Northeast Correctional Center
P. O. Box 5000
Mountain City, Tennessee 37683
       Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General and Reporter

PATRICIA C. KUSSMANN
Assistant Attorney General
Second Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, Tennessee 37243
       Attorney for Respondent/Appellee



                               AFFIRMED AS MODIFIED
                                  AND REMANDED



                                             BEN H. CANTRELL, JUDGE

CONCUR:
TODD, P.J., M.S.
KOCH, J.

                                 OPINION
              The Chancery Court of Davidson County ruled that it lacked jurisdiction

over a Petition for Declaratory Judgment filed by a prisoner in the custody of the

Tennessee Department of Correction, and it dismissed the petition with prejudice. We

affirm the dismissal, but we amend it to be without prejudice.



                           I. Facts and Prior Proceedings



              Donald R. McMahan was convicted in the Criminal Court of Hamblen

County of multiple counts of drug possession. He was sentenced on March 28, 1989,

receiving sentences amounting to 35 years for possession of schedule II drugs and

7 years for possession of cocaine. The sentences were ordered to run consecutively,

for a total of 42 years.



              Mr. McMahan was transferred to the Carter County Work Camp in 1992

and placed on work release. On July 23, 1993, officers of the facility found four grams

of marijuana at the foot of his bed, which they claimed belonged to him. The prisoner

was tried in the Carter County Criminal Court, and was convicted on February 21,

1995 of having contraband in a penal facility. He received a three year sentence, to

be served consecutively to his original sentence.



              At the time of his transfer to the work camp, Mr. McMahan had been

presented with a document entitled Assignment of Responsibility, which he signed,

and which read in relevant part:

              “I understand that if I am convicted of a felony except
              escape committed while on work, educational, restitution,
              or other program which allows me the privilege of
              supervised or unsupervised release into the community I
              must serve the remainder of my term without parole or
              further participation in such programs . . . this is
              consistent with the laws of Tennessee, specifically 40-28-
              123 (b)(1).”




                                         -2-
               After he was sentenced, Mr. McMahan was notified that his release

eligibility date (RED), which is the earliest date that a prisoner may be considered for

release, had been moved forward from the year 1999 to the year 2029.



               On September 6, 1996, Mr. McMahan addressed a document which he

captioned “Declaratory Order of Exhaustion of Administrative Rights to Be Enforced,”

to Candace Whisman, a sentence analyst with the Sentence Information Services of

the Department of Correction. The document contained argument to the effect that

a mere record clerk had no right to alter a prisoner’s RED, and a request that Mr.

McMahan’s previous RED of 1999 be restored. There was apparently no response

to the document.



               The prisoner subsequently filed a Petition for Declaratory Judgment in

the chancery court, which contained the same arguments and same request for relief

as in the document he previously submitted to Ms. Whisman. The chancery court

stated that the petitioner had not followed the procedures that are required before the

court may review the action of an administrative agency, and it dismissed the petition

with prejudice. This appeal followed.



                                      II. Jurisdiction



               The Uniform Administrative Procedures Act (UAPA), Tenn. Code Ann.

§ 4-5-101 et seq., provides a mechanism for judicial review of the actions of state

administrative agencies. Under the Act, an individual must first petition the agency

itself for a declaratory order as to “the validity or applicability of a statute, rule, or order

within the primary juridiction of the agency.” Tenn. Code Ann. § 4-5-223.



               Upon receiving such a petition, the agency may convene a contested

case hearing and issue a declaratory order, or it may refuse to issue a declaratory


                                             -3-
order. In either case, the petitioner is entitled at that point to apply to the court for a

review of the agency’s action, through a Petition for Declaratory Judgment. Tenn.

Code Ann. § 4-5-224.



               As the Chancellor noted, the Department of Correction has also

established specific procedures for internal review of its actions, which a prisoner

must comply with before taking the ultimate administrative step of filing a Petition for

a Declaratory Order with the legal office of the department. Mr. McMahan did not

follow any of these procedures, nor did he send a Petition for a Declaratory Order to

the proper parties, but instead sent a document of his own design to a department

employee who lacked the authority to grant him the relief that he sought.



               It appears from the caption of the document Mr. McMahan submitted to

Ms. Whisman that he was aware of the need to exhaust his administrative remedies

before he would be permitted to apply for judicial review, and that the procedures to

follow included applying for a declaratory order. While we recognize that a prisoner

who is unversed in the law and is acting pro se may not be held in every instance to

the same standards that are imposed on a licensed attorney, we do not believe that

any litigant can confer jurisdiction on a trial court under the UAPA without following the

requirements of the statute and of relevant regulations. We therefore affirm the action

of the trial court in dismissing the petition for lack of jurisdiction.



               An involuntary dismissal for lack of jurisdication is generally considered

not to be an adjudication on the merits. See Rule Tenn.R.Civ. P. 41.02(3), Goeke v.

Woods, 777 S.W.,2d 347, 349 (Tenn. 1989). We therefore do not believe that Mr.

McMahan should be precluded from further access to the courts, if he pursues his

administrative remedy to an unsuccessful conclusion, and we amend that portion of

the trial court’s order that would have had the effect of cutting him off from such

access.


                                            -4-
                                        III.



             We affirm the action of the trial court, but declare its dismissal to be

without prejudice. Remand this cause to the Chancery Court of Davidson County for

further proceedings consistent with this opinion. Tax the costs on appeal to the

appellant.




                                               ____________________________
                                               BEN H. CANTRELL, JUDGE



CONCUR:




_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION




_____________________________
WILLIAM C. KOCH, JR., JUDGE




             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE



DONALD R. McMAHAN,                      )
                                        )
      Petitioner/Appellant,             )
                                        )      Appeal No.
                                        )      01-A-01-9711-CH-00681
VS.                                     )
                                        )      Davidson Chancery
                                        )      No. 97-163-III
CANDACE WHISMAN,                        )
TENNESSEE DEPARTMENT OF                 )
CORRECTION,                             )
                                        )
      Respondent/Appellee.              )
                                 JUDGMENT

              This cause came on to be heard upon the record on appeal from the

Chancery Court of Davidson County, and briefs of the parties; upon consideration

whereof, this Court is of the opinion that in the decree of the Chancellor there is no

reversible error. However, we find that the dismissal of the petition should be without

prejudice.

              In accordance with the opinion of the Court filed herein, it is, therefore,

ordered and decreed by this Court that the decree is affirmed as modified. The cause

is remanded to the Chancery Court of Davidson County for the enforcement of the

decree and for the collection of the costs accrued below.

              Costs of this appeal are taxed against Donald R. McMahan, Principal,

for which execution may issue if necessary.




                                           ________________________________
                                           HENRY F. TODD, PRESIDING JUDGE
                                           MIDDLE SECTION


                                           ________________________________
                                           BEN H. CANTRELL, JUDGE


                                           ________________________________
                                           WILLIAM C. KOCH, JR., JUDGE




                                          -6-
