                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                Assigned on Briefs November 7, 2003

                         RONALD PAUL v. STATE OF TENNESSEE

                              Appeal from the Tennessee Claims Commission
                                              No. 99000874



                     No. M2003-01244-COA-R9-CV - Filed December 16, 2003



Appellant, a state prison inmate, filed a claim with the Tennessee Claims Commission against the
State of Tennessee for the alleged malpractice of Dr. Paul Somers, a physician acting under contract
with the Department of Corrections, to provide medical care for inmates. The Commission granted
summary judgment on the basis that Dr. Somers was not a “state employee” within the meaning of
Tennessee Code Annotated section 8-42-101(a)(3). We affirm the action of the Commission.

 Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Tennessee Claims Commission
                                Affirmed and Remanded

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

Ronald Paul, Wartburg, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Dawn
Jordan, Assistant Attorney General, for the appellee, State of Tennessee.

                                                     OPINION

       The facts of this case and the plaintiff’s allegation of damages as asserted in the corrected
Notice of Claim filed by Appellant in the Division of Claims Administration on November 19, 1998
are1:

                 In August of 1997, while an inmate in the custody of the Tennessee
         Department of Correction, I was transferred to the Department’s Special Needs
         Facility, 7575 Cockrill Bend-Industrial Road, Nashville, Tennessee. While


         1
            On summary judgment motion, the facts must be considered in the light most favora ble to Plaintiff and all
reaso nable inferences from such facts must be indulged in Plaintiff’s favor. Byrd v. H all, 847 S.W .2d 28 (T enn.1993).
       temporarily confined there, I underwent surgery intended to correct a “hammer toe”
       condition. That surgery was performed by Dr. Paul J. Somers, Jr., of the American
       Foot Care Center, P.C., 311 White Bridge Road, Nashville, Tennessee. Dr. Somers
       was then in a contractual relationship with the State of Tennessee to provide podiatric
       care for inmates requiring such.
               In late November of 1997, after having returned to the Wayne County Annex,
       at which facility I am permanently housed within the Department, I again
       experienced problems with my toes. Upon reporting same to the medical staff at
       Wayne County Annex, I learned for the first time that, in connection with the August
       1997 surgery, all of the bones had been removed from two of my toes. I further
       learned that this was not the procedure which should have been followed to correct
       my hammer toe condition; that, as a result of this procedure, I have permanently lost
       the use of two of my toes; and that it may become necessary to amputate those now
       useless toes at some future date. It was at this time, in late November of 1997 and
       therefore less than one year from the date hereof, that I first became aware of the
       negligence which is the subject of this claim.
               I have permanently lost the use of two of my toes, and those toes may need
       to be amputated at some future date. The State of Tennessee is liable to me for
       damages in this matter, pursuant to T.C.A. Sec. 9-8-307(a)(1)(E), imposing liability
       for the negligent care, custody and control of persons. I claim actual damages in this
       matter in the amount of $300,000.00 and request that the State compensate me in this
       amount.

        By the provisions of Tennessee Code Annotated section 9-8-307(a)(1), the state is liable for
“acts or omissions of ‘state employees’ as defined in section 8-42-101(3).”

       Tennessee Code Annotated section 8-42-101(a)(3) provides the following definition:

               ‘State employee’ means any person who is a state official, including members
       of the general assembly and legislative officials elected by the general assembly, or
       any person who is employed in the service of and whose compensation is payable by
       the state, or any person who is employed by the state whose compensation is paid
       in whole or in part from federal funds, but does not include any person employed on
       a contractual or percentage basis.

Tenn. Code Ann. § 8-42-101(a)(3)(A)(Supp.1998).

        The only defendant in this case is the State of Tennessee. Sovereign immunity is the rule in
Tennessee and has been abrogated only to the extent that statutory provisions allow actions against
the state.

              Article I, section 17 of the Tennessee Constitution provides that “[s]uits may
       be brought against the State in such manner and in such courts as the Legislature may


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       by law direct.” This constitutional provision reflects sovereign immunity, the notion
       that a sovereign governmental entity cannot be sued in its own courts without its
       consent. See State v. Cook, 171 Tenn. 605, 609, 106 S.W.2d 858, 860 (1937);
       Tenn.Code Ann. § 20-13-102 (“No court in the state shall have any power,
       jurisdiction, or authority to entertain any suit against the state . . . with a view to
       reach the state, its treasury, funds, or property . . .”). As a general interpretive matter,
       this Court has held that the principle of sovereign immunity requires that legislation
       authorizing suits against the state must provide for the state’s consent in “plain, clear,
       and unmistakable” terms. Cook, 171 Tenn. at 611, 106 S.W.2d at 861; . . .

Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn.2000).

        Appellant seeks to avoid sovereign immunity by invoking West v. Atkins, 487 U.S. 42, 108
S.Ct. 2250 and 101 L.Ed.2d 40 (1988). West involves a federal civil rights claim wherein plaintiff
sought recovery against a contract physician based upon violation of the Eighth Amendment to the
United States Constitution. See 42 USC § 1983; West, 487 U.S. at 42, 108 S.Ct. at 2251. The
Supreme Court held that the action of the contract physician in providing care to prison inmates was
under color of state law within the meaning of section 1983. The United States Supreme Court
observed:

               To state a claim under § 1983, a plaintiff must allege the violation of a right
       secured by the Constitution and laws of the United States, and must show that the
       alleged deprivation was committed by a person acting under color of state law.
       Parratt v. Taylor, 451 U. S. 527, 535 (1981) (overruled in part on other grounds,
       Daniels v. Williams, 474 U. S. 327, 330-331 (1986)); Flagg Bros., Inc. v. Brooks,
       436 U. S. 149, 155 (1978). Petitioner West sought to fulfill the first requirement by
       alleging a violation of his rights secured by the Eighth Amendment under Estelle v.
       Gamble, 429 U. S. 97 (1976). There the Court held that deliberate indifference to a
       prisoner’s serious medical needs, whether by a prison doctor or a prison guard, is
       prohibited by the Eighth Amendment. Id., at 104-105. The adequacy of West’s
       allegation and the sufficiency of his showing on this element of his § 1983 cause of
       action are not contested here. The only issue before us is whether petitioner has
       established the second essential element – that respondent acted under color of state
       law in treating West’s injury.

West v. Atkins, 487 U.S. at 48-9; 108 S.Ct. at 2254-5, 101 L.Ed.2d at 48-9 (1988).

         Appellant in this case acts pro se in his appeal, but it may be noted that he was previously
represented by Lionel Barrett, formerly of the Nashville Bar and by Monte Watkins of the Nashville
Bar. At no point in his complaint does he ever allege either of the prerequisites to section 1983
liability. He neither asserts a claim based on the United States Constitution or upon federal law, nor
does he aver that Dr. Somers was acting “under color of state law.” If one applies the Eighth
Amendment context of West, nothing alleged rises to the dignity of an Eighth Amendment violation.


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                  Similarly, in the medical context, an inadvertent failure to provide adequate
         medical care cannot be said to constitute “an unnecessary and wanton infliction of
         pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a
         physician has been negligent in diagnosing or treating a medical condition does not
         state a valid claim of medical mistreatment under the Eighth Amendment. Medical
         malpractice does not become a constitutional violation merely because the victim is
         a prisoner. In order to state a cognizable claim, a prisoner must allege acts or
         omissions sufficiently harmful to evidence deliberate indifference to serious medical
         needs. It is only such indifference that can offend “evolving standards of decency”
         in violation of the Eighth Amendment.

Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct.285, 50 L.Ed.2d 251 (1976) (footnote omitted).

        Dr. Somers was not a “state employee” within the meaning of Tennessee Code Annotated
section 8-42-101(a)(3)(A)(Supp.1998).

         Summary judgment was properly granted and the action of the Commission is affirmed.

         Costs of this cause are assessed to the appellant and the case is remanded for collection of
costs.




                                                        ___________________________________
                                                        WILLIAM B. CAIN, JUDGE




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