                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                Assigned on Briefs January 31, 2003

                           JAMES BOYD v. BILLY RILEY, ET AL.

                          Appeal from the Circuit Court for Wayne County
                           No. 3544 and 3545 Stella Hargrove, Judge



                    No. M2002-01384-COA-R3-CV - Filed December 19, 2003


This appeal, filed pro se, involves two separate law suits that were filed and pursued in the trial court
without consolidation and heard without consolidation on appeal. One complaint alleges negligence,
and the other complaint alleges malpractice. The trial court dismissed both actions, and we affirm
the actions of the trial court.

      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 BEN H. CANTRELL, P.J., M.S., and
PATRICIA J. COTTRELL, J., joined.

James R. Boyd, Clifton, Tennessee, Pro Se.

Tom Anderson, Jackson, Tennessee, for the appellees, Billy Riley and John Crunk.

                                       MEMORANDUM OPINION1

       On April 22, 1999, Appellant filed two separate law suits in the Circuit Court of Wayne
County, Tennessee. The first Complaint alleged medical malpractice and named Robert Coble, John
Crunk and ‘Doctor Ray’ as Defendants. The second case, alleging negligence, named Billy Riley
and Correction Corporation of America as Defendants. Appellant is a prison inmate.

        On June 22, 1999, Defendant John Crunk, who was not a medical doctor but who served as
Health Administrator for the prison, filed a Tennessee Rule of Civil Procedure 12.02(6) Motion
asserting failure to state a claim upon which relief could be granted. This Motion to Dismiss was

        1
          Court of Appeals Rule 10(b):
                 This Court, with the concurrence of all judges participating in the case, may affirm, reverse
        or modify the actions of the trial court by memorandum opinion when a formal opinion would have
        no precedential value. W hen a case is decided by memorandum opinion it shall be designated
        “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any
        reason in a subsequent unrelated case.
granted by the trial court on January 27, 2000, and the malpractice action was dismissed as to John
Crunk.

      On April 12, 2001, Appellant filed an Amended Complaint Claim for Negligent Loss and
Damage to Personal Property without obtaining leave of the court under Tennessee Rule of Civil
Procedure 15. This Amended Complaint sought to join as Defendants Linda Rochelle, Assistant
Warden, together with John Does 1 and 2 and the Corrections Corporation of America.

       On April 23, 2001, Defendant Billy Riley, in the original negligence Complaint, filed a Rule
12.02(6) Motion to Dismiss for failure to state a claim upon which relief could be granted. On July
17, 2001, again without obtaining leave of the court pursuant to Rule 15, Appellant filed, in both the
malpractice action and the negligence action, his Supplemental Complaint relative to his personal
property. On August 31, 2001, the trial court granted the Motion to Dismiss filed by Billy Riley.
Defendant Dr. Robert Coble also filed a Motion for Summary Judgment in the malpractice case
which, on May 31, 2001, was granted by the trial court.

       On February 28, 2002, the trial court entered the following order:

              In this cause, it appears to the Court that Plaintiff is not properly before the
       Court on any of his pending pleadings and motions and that same should be denied.

               More specifically, the Court finds that the original Complaint was filed herein
       on the 22nd day of April, 1999, naming Robert Coble, John Crunk and Doctor Ray
       as Defendants. Motion for Summary Judgment as to Robert Coble was granted and
       entered on May 31, 2001. A copy of the Order was certified to Plaintiff on May 31,
       2001. Motion to dismiss as to John Crunk was granted and entered January 27, 2000.
       A copy of the Order was certified to Plaintiff. Doctor Ray was never served, and no
       alias service of process has issued beyond the first failed service on May 18, 1999.

             Plaintiff filed his Motion for Leave to Amend Response in Opposition to
       Summary Judgment as to Defendant, Robert Coble, on the 4th day of December,
       2001. The Court dismisses Plaintiff’s Motion as not being timely filed.

              On April 12, 2001, Plaintiff filed an Amended Complaint in this case and in
       another case, Circuit Court Case No. 3544, naming Linda Rochelle, John Does 1 and
       2 and Corrections Corporation of America as new Defendants. This Amended
       Complaint was filed without leave of the Court and alleges new and different losses
       and damages arising after the allegations originally alleged in this case. The Court
       dismisses same action pursuant to Rule 15 of Rules of Civil Procedure and also
       dismisses Plaintiff’s Motion for Default Judgment as to these new Defendants.

Appellant filed a Motion for New Trial which, on April 25, 2002, was denied by the trial court, and
Appellant filed his Notice of Appeal.


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        The record on appeal reflects that “Doctor Ray” was, indeed, never served with process, and
that no alias process ever issued. He has, therefore, never been before the court. Further, neither the
Amended Complaint or the Supplemental Complaint were filed by leave of the court and the trial
court dismissed them for that reason. A more pressing reason exists for dismissal.

        By the inmate affidavit filed by James Boyd on April 19, 1999, a previous case in the United
States District Court for the Middle District of Tennessee alleging failure to provide medical care
and failure to timely pay for work was dismissed as frivolous in 1998. On a single affidavit of
indigency he now files case number 3544 charging Billy Riley and Corrections Corporation of
America with negligence because he bit down on a foreign substance in a hamburger. In case
number 3545 he charges Robert Coble, John Crunk and Doctor Ray with medical malpractice. He
then proposes by amendment to join Linda Rochelle, John Doe 1, John Doe 2 and Corrections
Corporation of America in a separate charge of negligence for alleged loss of certain personal
property. By proposed supplemental complaint allegedly in case numbers 3544 and 3545 he claims
he was denied a liberty interest because he was nsot allowed to have a large stereo system. Each of
these separate claims are in fact separate claims under Tennessee Code Annotated section 41-21-801,
et seq. The purpose of these sections of the Code are to prevent the very type of abuse of court
processes evidenced by these actions. Tennessee Code Annotated section 41-21-807 provides in
part: “With the filing of each claim, the inmate shall file a current certified copy of the inmate’s trust
account statement with the court.” By the same statute, if a claim is frivolous the court shall order
the inmate to pay filing fees, court costs and other related expenses as to such claim. To use the
amendment process in civil actions to allow totally unrelated claims, both as to allegations and as
to defendants, to circumvent the requirements of Title 41 Chapter 21 Tennessee Code Annotated
cannot be allowed.

        The record reveals that, as to the Defendant Dr. Robert Coble, his Motion for Summary
Judgment was granted on May 31, 2001, and in such Order the trial court, pursuant to Tennessee
Rule of Civil Procedure 54.02, expressly determined that there was no just cause for delay in
entering a Final Order as to this Defendant. The Order was designated as final pursuant to the Rule.
This action was buttressed by a separate Order entered November 29, 2001, which reiterated the
finality of the Order pursuant to Rule 54.02. Notice of Appeal was not filed until May 6, 2002.
Thus, as to Defendant Doctor Robert Coble, appeal was not timely filed.

        As to all of the Defendants, both of the claims that are before the Court are frivolous. In the
malpractice complaint, Appellant asserts that Drs. Coble and Ray are licensed medical doctors and
that John Crunk is a registered nurse and Director of Health Services at South Central Correctional
Facility. He complains of high cholesterol, skin problems, failure of Dr. Coble to refer him to a
dermatologist and improper discontinuance of medication. However, Appellant never purports to
offer competent evidence establishing the applicable standard of care for any Defendant or
establishing any deviation from such standard of care.

        Tennessee Code Annotated section 29-26-115 (2000) provides in pertinent part:



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                (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 claimant 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.
                (b) No person in a health care profession requiring licensure under the laws
        of this state shall be competent to testify in any court of law to establish the facts
        required to be established by subsection (a), unless the person was licensed to
        practice in the state or a contiguous bordering state a profession or specialty which
        would make the person’s expert testimony relevant to the issues in the case and had
        practiced this profession or specialty in one (1) of these states during the year
        preceding the date that the alleged injury or wrongful act occurred. This rule shall
        apply to expert witnesses testifying for the defendant as rebutal witnesses. The court
        may waive this subsection when it determines that the appropriate witnesses
        otherwise would not be available.
                (c) In a malpractice action as described in subsection (a), there shall be no
        presumption of negligence on the part of the defendant; . . . .

Plaintiffs have the burden of proving by expert testimony: (1) the standard of care; (2) defendant’s
deviated from that standard, and (3) plaintiff’s injuries, which would not otherwise have occurred
except as a proximate result of the defendant’s negligent act or omission. Dolan v. Cunningham,
648 S.W.2d 652 (Tenn. Ct. App. 1982); Parker v. Vanderbilt University, 767 S.W.2d 412 (Tenn. Ct.
App. 1988). No such evidence was presented.

        In the negligence case, Plaintiff simply asserted that he bit down on a hamburger containing
a piece of hard plastic. No where does he allege that Defendant, Billy Riley, or anyone else had prior
knowledge of this piece of plastic in the hamburger or that Riley was actually responsible for the
preparation of the food. “The Tennessee Rules of Civil Procedure, while simplifying and liberalizing
pleading, do not relieve the plaintiff in a tort action of the burden of averring facts sufficient to show
the existence of a duty owed by the defendant, a breach of the duty, and damages resulting
therefrom.” Swallows v. Western Elec. Co., Inc., 543 S.W.2d 581, 583 (Tenn. 1976). In order for
the allegations of the negligence Complaint to be sufficient to state a cause of action in this case,
Defendants would have to be insurers and not tort feasors.

        The judgment of the trial court is in all respects affirmed, and the cases remanded for such
further action as may be necessary under Tennessee Code Annotated section 41-21-801, et seq.
Costs are assessed to Appellant.



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      ___________________________________
      WILLIAM B. CAIN, JUDGE




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