                                                                                           02/20/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                         Assigned on Briefs February 1, 2019

               BRUCE A. SMILEY v. STATE OF TENNESSEE, ET AL.

                Appeal from the Chancery Court for Davidson County
                    No. 17-0969-III   Ellen H. Lyle, Chancellor
                      ___________________________________

                           No. M2018-01263-COA-R3-CV
                       ___________________________________

This appeal arises from a Petition for Declaratory Judgment filed by an incarcerated sex
offender in the custody of the Tennessee Department of Correction. Petitioner challenged
what he claimed to be the illegal, arbitrary, and capricious application of Tenn. Code
Ann. § 41-21-235, the Sex Offender Treatment Program (the “SOTP”), contending he is
eligible for a parole hearing but will be denied parole because the State of Tennessee has
failed to enroll him in the program. This contention is based on Tenn. Code Ann. § 41-
21-235(b), which expressly states, as to sex offenders, “Successful participation and
completion of the treatment program shall be a consideration for parole from a
correctional institution.” Respondents moved for summary judgment on several grounds
including the undisputed fact that the challenged provision is unenforceable due to a
consent decree issued by the United States District Court for the Middle District of
Tennessee in Dean v. McWherter, No. 1-90-0027 (M.D. Tenn. filed Aug. 18, 1994), and
the Tennessee Board of Parole does not consider participation in the SOTP, or lack
thereof, as a factor in deciding whether to grant parole. Respondents also filed a motion
to dismiss the individual respondents as well as the State for failure to state a claim based
Tenn. Code Ann. § 4-5-225. The trial court granted the motion to dismiss the individual
respondents and summarily dismissed all remaining claims. In pertinent part, the court
found it was undisputed that by the terms of the consent decree and the affidavit of the
Executive Director of the Board of Parole that the Board cannot and does not consider an
inmate’s participation in the SOTP in reaching its parole decision. This appeal followed.
We affirm in all respects.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which THOMAS
R. FRIERSON, II, and KENNY W. ARMSTRONG, JJ., joined.

Bruce A. Smiley, Pikeville, Tennessee, Pro Se.
Herbert H. Slatery, III, Attorney General and Reporter, Andrée Sophia Blumstein,
Solicitor General, and Eric A. Fuller, Assistant Attorney General, Nashville, Tennessee,
for the appellees, the Tennessee Department of Correction; Commissioner, Tennessee
Department of Correction; Brandon Maloney; State Attorney General; State of
Tennessee; Douglas Stephens; and Alvin Washington.

                                              OPINION

       Bruce Smiley (“Petitioner”) is an incarcerated sex offender in the custody of the
Tennessee Department of Correction (“TDOC”). He is serving two (2) consecutive terms
of incarceration: a fifteen (15) year sentence, which has now expired, and an eight (8)
year sentence, which commenced in July 2016.

        On September 7, 2017, Petitioner filed a Petition for Declaratory Judgment,1
contending, inter alia, that he was required to complete the SOTP prior to release on
parole and that he has not been allowed to enter the program. The petition further alleged
that Petitioner has been told that he cannot enter the program until four years prior to the
expiration of his sentence. Petitioner’s sentence expires in 2024. The petition stated, and
it is undisputed, that Petitioner has completed 100% of his sentence for the 15-year term
and more than 30% of the 8-year term. As a consequence, he is eligible for parole.2

       The essence of the petition is that because the TDOC has prevented Petitioner
from entering the SOTP, he is being denied the opportunity for parole because Tenn.
Code Ann. § 41-21-235(b) precludes parole without completing the SOTP. As it pertains
to sex offenders, Tenn. Code Ann. § 41-21-235(b) states that “successful participation
and completion of the treatment program shall be a consideration for parole from a
correctional institution.” Therefore, Petitioner is seeking a declaratory judgment that the
statutory bar violated his constitutional rights as well as affirmative injunctive relief
requiring that he be placed in the SOTP.

       In a combined Motion to Dismiss and/or Motion for Summary Judgment,
Respondents moved to dismiss all of the individual respondents and the State itself based
on Tenn. Code Ann. § 4-5-225. They also moved to dismiss on the grounds the petition
was premature because Petitioner had not yet had a parole hearing, had not been denied
parole, and had not exhausted the administrative appeal process.
        1
          The respondents named in the petition include the Tennessee Department of Correction; the
State of Tennessee; Attorney General Herbert Slatery III; Brandon Maloney, the Director of Classification
for TDOC; Tony Parker, the Commissioner of Correction; Douglas Stephens, the Detainer Administrator
for the TDOC; and Alvin Washington, one of the program facilitators for the SOTP.
        2
         By statute, Petitioner was required to complete 100% of the sentence for the 15-year term and
30% of the 8-year sentence before becoming eligible for parole.


                                                  -2-
       As for the motion for summary judgment, Respondents insisted that it was
undisputed that the relevant provision of Tenn. Code Ann. § 41-21-235(b) is not
enforceable. To prove this fact, Respondents cited a consent decree issued by the United
States District Court for the Middle District of Tennessee in Dean v. McWherter, No. 1-
90-0027 (M.D. Tenn. filed Aug. 18, 1994), that renders the relevant provision of Tenn.
Code Ann. § 41-21-235(b) unenforceable. Additionally, Respondents provided the
affidavit of Jim Purviance, Board of Parole Executive Director, who testified that “at
Parole Grant or Parole Review Hearings for sex offenders, Hearing Officials may not
recommend denying parole in order to complete sex offender treatment or for failure to
complete sex offender treatment. Board members do not deny parole to offenders in order
to complete sex offender treatment or for failure to complete sex offender treatment.”

       Based upon these facts, Respondents insisted that the Tennessee Board of Parole
does not and cannot consider Petitioner’s participation in the SOTP, or lack thereof, as a
factor in deciding whether to grant parole. Therefore, the factual basis for Petitioner’s
claim for a declaratory judgment and injunctive relief is without foundation and, as a
consequence, the request for relief is moot.

       Petitioner timely filed a response in opposition to Respondents’ motions. His
response was supported by affidavits from inmates who have participated in the SOTP;
however, Petitioner offered no evidence to dispute the material fact that Petitioner’s
status in the SOTP could not be considered in making the parole decision. More
significantly, in their statement of undisputed material facts, Respondents asserted as
fact: “Hearing officers and board members of the Board of Parole cannot and do not
recommend denial of parole or deny parole for failure to complete a sex offender
treatment program.” Petitioner’s response to this proposed undisputed fact reads:
“Petitioner agrees that this fact is undisputed.” Therefore, Respondents contended there
was no factual basis and no ground for the relief Petitioner sought.

       After considering the foregoing and all other pertinent information filed by the
parties, the trial court dismissed all claims against the individual respondents and
summarily dismissed all remaining claims. This appeal followed.

       Petitioner raises numerous issues for us to consider; however, we have determined
there are only three issues that require discussion. They are:

      (1) Whether the trial court erred in dismissing the petition for declaratory
          judgment against the individual respondents.

      (2) Whether the trial court, in dismissing the petition for declaratory judgment on
          summary judgment, abused its discretion without first allowing petitioner the
          opportunity to conduct meaningful discovery.

                                          -3-
       (3) Whether the trial court erred in summarily dismissing the petition.

                                         ANALYSIS

                                              I.

       Petitioner contends the trial court erred by dismissing the petition for declaratory
judgment against Attorney General Herbert Slatery III; Brandon Maloney, the Director of
Classification for TDOC; Tony Parker, the Commissioner of Correction; Douglas
Stephens, the Detainer Administrator for the TDOC; and Alvin Washington, one of the
program facilitators for the SOTP (“the Individual Respondents”).

       Respondents moved to dismiss the Individual Respondents and the State itself in a
motion filed on March 9, 2018, stating “[D]eclaratory judgment actions cannot be
brought against individuals; the only proper Respondent is the relevant agency of the
State. Therefore, all Respondents other than the TDOC itself must be dismissed.” The
motion to dismiss was based on the following argument:

       The Declaratory Judgment Act at Tenn. Code Ann. § 20-13-102(a)
       specifically bars suits against the state, or any state officer, in an attempt to
       reach the state treasury or its funds. Tenn. Code Ann. § 4-5-225 permits
       challenges of the action of a particular agency, but not those of any
       individual or of the state itself. It is well settled that Tennessee Court[s]
       may not entertain declaratory judgment actions against state officers. See
       e.g. Utley v. Rose, 55 S. W.3d 559, 562 (Tenn. Ct. App. 2001). Therefore,
       the only available respondent here is the TDOC — assuming arguendo that
       the TDOC had any power or authority over parole decisions.

      In granting the motion to dismiss the Individual Respondents, the trial court
reasoned:

       Tennessee Code Annotated section 4-5-225 permits challenges of the action
       of a particular agency, but not those of any individual or of the State itself.
       A Tennessee Court may not entertain declaratory judgment actions against
       state officers. See e.g. Utley v. Rose, 55 S.W.3d 559, 562 (Tenn. Ct. App.
       2001). Based upon this law and that the claims in this lawsuit are filed
       under Tennessee Code Annotated section 4-5-225, this lawsuit cannot be
       brought against the individual Respondents: Alvin Washington, Brandon
       Maloney, Attorney General Herbert Slatery III, Douglas Stephens,
       Commissioner Tony Parker. These individual Respondents are therefore
       dismissed from the lawsuit for failure to state a claim as a matter of law.


                                             -4-
       Having determined that the trial court correctly identified and properly applied the
relevant legal principles, we affirm the dismissal of the Individual Respondents.

                                             II.

      Petitioner contends the trial court abused its discretion by dismissing the Petition
for Declaratory Judgment on summary judgment without first allowing Petitioner the
opportunity to conduct meaningful discovery.

        The Petition for Declaratory Judgment was filed on September 7, 2017, and
Petitioner was granted leave of court to proceed in forma pauperis by order entered on
October 23, 2017. Although Respondents filed motions for extension of time to file a
responsive pleading, the issues were joined no later than March 9, 2018, when
Respondents filed their joint Motion to Dismiss Petition for Declaratory judgment and/or
Motion for Summary Judgment. The motion was supported by the affidavit of Jim
Purviance, Executive Director of the Tennessee Board of Parole, a copy of the Court of
Appeals decision in Dalton v. Tennessee Bd. of Paroles, No. 01-A-01-9601-CH-00029,
1996 WL 230209, at *1 (Tenn. Ct. App. May 8, 1996), a memorandum of law in support
of the motions, and a statement of undisputed material facts. Petitioner then filed a
motion for extension of time to file a response, which was timely granted on April 12,
2018. Thereafter, Petitioner filed his Response in Opposition to Respondents’ Motion to
Dismiss and for Summary Judgment, which was supported by multiple affidavits, a
memorandum of law, and a separate statement of disputed material facts. Significantly,
however, Petitioner never asked the trial court for additional time to conduct discovery
prior to hearing the motions.

       Our courts have consistently taken the view that “issues not raised in the trial court
cannot be raised for the first time on appeal.” Correll v. E.I. DuPont de Nemours & Co.,
207 S.W.3d 751, 757 (Tenn. 2006) (citations omitted). Stated another way, the failure to
raise an issue in the trial court will ordinarily operate as a waiver of that issue on appeal.
Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 511 (Tenn. 2010). Because Petitioner
never asked the trial court for additional time to conduct discovery in order to respond to
the motion to dismiss and motion for summary judgment, Petitioner has waived this
issue.

                                             III.

        Respondents challenged the petition on multiple fronts but the primary ground
they relied upon for summary judgment, as summarized in their appellate brief, is “there
was never any foundational basis for Appellant’s petition or subsequent appeal, and the
relief he sought cannot be granted – because the wrong he avers is a factual and legal
impossibility.” This argument is based on the undisputed material fact that the Board of
Parole could not and does not consider Petitioner’s completion of the SOTP as a basis

                                            -5-
upon which to deny him parole. The trial court agreed, as it explained in its ruling, “all
claims in the lawsuit against any and all parties are dismissed on summary judgment
because the premise of the Petition—that denial of parole for Petitioner is predetermined
if he has not completed SOTP—is incorrect as a matter of law and fact.” Petitioner
contends the trial court erred in summarily dismissing his claim.

       This court reviews a trial court’s decision on a motion for summary judgment de
novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997)). Accordingly, this court must make a fresh determination of whether the
requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.; Hunter v. Brown, 955
S.W.2d 49, 50-51 (Tenn. 1997). In so doing, we consider the evidence in the light most
favorable to the non-moving party and draw all reasonable inferences in that party’s
favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).

        Summary judgment should be granted when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. When the party moving for
summary judgment does not bear the burden of proof at trial, it may satisfy its burden of
production “either (1) by affirmatively negating an essential element of the nonmoving
party’s claim or (2) by demonstrating that the nonmoving party’s evidence at the
summary judgment stage is insufficient to establish the nonmoving party’s claim or
defense.” Rye, 477 S.W.3d at 264 (emphasis in original).

       When a motion for summary judgment is made and supported as provided in
Tenn. R. Civ. P. 56, the nonmoving party may not rest on the allegations or denials in its
pleadings. Id. Instead, the nonmoving party must respond with specific facts showing that
there is a genuine issue for trial. Id. A fact is material “if it must be decided in order to
resolve the substantive claim or defense at which the motion is directed.” Byrd v. Hall,
847 S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a reasonable jury could
legitimately resolve that fact in favor of one side or the other.” Id.

       If the moving party makes a properly-supported motion, the burden shifts to the
nonmoving party to “set forth specific facts at the summary judgment stage showing that
there is a genuine issue for trial.” Rye, 477 S.W.3d at 265 (internal quotation marks
omitted; emphasis in original). A disputed fact is “material” if it “must be decided in
order to resolve the claim or defense at which the motion is directed.” Byrd v. Hall, 847
S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a reasonable jury could
legitimately resolve that fact in favor of one side or the other.” Id.

    As the trial court correctly noted in its memorandum opinion and order, in Dean v.
McWherter, No. 1-90-0027 (M.D. Tenn. filed Aug. 18, 1994), the TDOC and Board of

                                            -6-
Parole entered into a consent decree, described in a prior case, Dalton v. Tennessee Bd. of
Paroles, No. 01-A-01-9601-CH-00029, 1996 WL 230209, at *3 (Tenn. Ct. App. May 8,
1996), that reads as follows:

       Thereafter, on June 3, 1994, the parties stipulated that the sexual abuse
       treatment program required in Tenn. Code Ann. § 41-21-235(a) had “not
       been fully developed and instituted by the Tennessee Department of
       Correction.” Their stipulation also provided:

              2. The Tennessee Board of Paroles will not apply the
              provisions of Tenn. Code Ann. § 41-21-235(b) until such time
              that the sex abuse treatment program is fully instituted.

              3. The provisions of Tenn. Code Ann. § 41-21-235(b) will be
              applied only to those sex offenders who are committed to the
              custody of the Department of Correction after the sex abuse
              treatment program is instituted.

              4. Each sex offender who comes before the Board of Paroles
              will be judged on his or her own merits. The Board will apply
              the factors set forth in the Rules of the Board of Paroles,
              Chapter 1100-1-1-.06, to each sex offender in determining
              whether to grant or deny parole.

This fact is further supported by the affidavit of the Executive Director of the Board of
Parole, which reads in pertinent part, “at Parole Grant or Parole Review Hearings for sex
offenders, Hearing Officials may not recommend denying parole in order to complete sex
offender treatment or for failure to complete sex offender treatment. Board members do
not deny parole to offenders in order to complete sex offender treatment or for failure to
complete sex offender treatment.”

       Petitioner identified no facts or evidence to dispute the foregoing facts. Moreover,
and significantly, Petitioner responded to the motion for summary judgment agreeing that
this fact is undisputed. Therefore, it is undisputed that Petitioner’s participation or lack
thereof in a SOTP could have no relevance or bearing on the parole board’s decision to
grant or deny parole. As a consequence, Respondents were entitled to summary judgment
as a matter of law.

       For the foregoing reasons, we affirm the judgment of the trial court.




                                           -7-
                                    IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Petitioner, Bruce A. Smiley.


                                                 ________________________________
                                                 FRANK G. CLEMENT JR., P.J., M.S.




                                          -8-
