                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                          Assigned on Briefs October 15, 2013

                   BRUCE RISHTON v. JIM MORROW, ET AL.

                   Appeal from the Circuit Court for Bledsoe County
                      No. 2011CV4948       Buddy Perry, Judge


              No. E2012-01046-COA-R3-CV-FILED-OCTOBER 22, 2013


Bruce Rishton (“Rishton”), formerly an inmate in the custody of the Tennessee Department
of Correction (“TDOC”), filed a petition for writ of certiorari in the Circuit Court for Bledsoe
County (“the Trial Court”) against officials Warden Jim Morrow, Deputy Warden Andrew
Lewis, and, Associate Warden of Operations C. Owens (collectively “the Respondents”).
Rishton alleged that the warden acted illegally and arbitrarily in denying him his musical
instrument. The Respondents filed a motion to dismiss. The Trial Court dismissed the case,
holding, inter alia, that the warden’s decision was administrative in nature and not subject
to review by writ of certiorari. Rishton appeals. We hold that, as Rishton has since been
released from TDOC custody, this case has become moot on appeal. We affirm the Trial
Court.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which JOHN W. M CC LARTY
and T HOMAS R. F RIERSON, II, JJ. joined.

Bruce Rishton, pro se appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; William Young, Solicitor General;
and, Lee Pope, Assistant Attorney General, for the appellees, Jim Morrow, Warden; Andrew
Lewis, Deputy Warden; and, C. Owens, Associate Warden of Operations.
                                  MEMORANDUM OPINION 1

                                              Background

                Rishton was an inmate in the custody of TDOC. In May 2011, Rishton pled
guilty to the disciplinary offense of a positive drug screen. Subsequently, the Respondents
no longer allowed Rishton to keep his guitar. In July 2011, Rishton filed a petition for writ
of certiorari against the Respondents in the Trial Court. Rishton alleged, among other things,
that the warden acted illegally and arbitrarily in denying him his guitar. In September 2011,
Rishton filed a motion for default judgment against the Respondents. Also at that time, the
Respondents filed a motion to dismiss, arguing that the warden’s decision to restrict an
inmate’s property was administrative in nature and not subject to review by writ of certiorari.

               In October 2011, the Trial Court granted the Respondents’ motion to dismiss
and denied Rishton’s motion for default judgment. The Trial Court held that the warden’s
discretionary decision to restrict inmate property on the basis of a disciplinary infraction was
administrative in nature and not subject to review by writ of certiorari. Additionally, the
Trial Court held that Rishton’s request for injunctive relief was moot. In January 2012,
Rishton filed a Rule 60 motion seeking relief from the October judgment on the basis that
he did not timely receive a copy of the order of dismissal and was precluded from timely
filing a notice of appeal. The Trial Court granted Rishton’s Rule 60 motion and vacated its
October 2011 judgment. In May 2012, the Trial Court again dismissed Rishton’s case.
Rishton timely appealed to this Court.

                                               Discussion

               Though not stated exactly as such, Rishton raises three issues on appeal: 1)
whether the Trial Court erred in denying his motion for default judgment; 2) whether the
Trial Court erred in dismissing his petition for writ of certiorari; and, 3) whether the
Respondents violated his due process rights by confiscating his personal property without
prior notification and authorization. We, however, believe the dispositive issue on appeal
is one raised by the Respondents: whether Rishton’s appeal is moot because he no longer is
in TDOC custody.



        1
          Rule 10 of the Rules of the Court of Appeals provides: “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. When 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 any unrelated case.”

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                In April 2013, the Respondents filed a motion to dismiss in this Court. In their
accompanying memorandum of law, the Respondents argue that this appeal should be
dismissed for mootness. In support of their argument, the Respondents assert that Rishton
is no longer in the custody of TDOC and that the relief sought by Rishton concerning access
to his guitar no longer has any practical effect.2 In May 2013, Rishton filed a response in
opposition to the Respondents’ motion to dismiss. In his response, Rishton made two
arguments. First, Rishton contended that the fault for the delay in the case lies with the
Respondents and their “dilatory practices.” According to Rishton, to dismiss his case would
serve to encourage TDOC officials to delay action until an inmate is released and essentially
run out the clock, so to speak. Second, Rishton contends that there is, in fact, practical relief
still available to him–namely, restitution for the cost of bringing this suit.

                Our Supreme Court recently has discussed justiciability and mootness:

                This Court must first consider questions pertaining to justiciability
        before proceeding to the merits of any remaining claims. See UT Med. Grp.,
        Inc. v. Vogt, 235 S.W.3d 110, 119 (Tenn. 2007) (noting that justiciability is a
        threshold inquiry). The role of our courts is limited to deciding issues that
        qualify as justiciable, meaning issues that place some real interest in dispute,
        Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 838 (Tenn. 2008), and are
        not merely “theoretical or abstract,” Norma Faye Pyles Lynch Family Purpose
        LLC v. Putnam Cnty., 301 S.W.3d 196, 203 (Tenn. 2009). A justiciable issue
        is one that gives rise to “a genuine, existing controversy requiring the
        adjudication of presently existing rights.” Vogt, 235 S.W.3d at 119.

                                                  ***

                To be justiciable, an issue must be cognizable not only at the inception
        of the litigation but also throughout its pendency. Norma Faye Pyles Lynch
        Family Purpose LLC, 301 S.W.3d at 203–04. An issue becomes moot if an
        event occurring after the commencement of the case extinguishes the legal
        controversy attached to the issue, Lufkin v. Bd. of Prof'l Responsibility, 336
        S.W.3d 223, 226 (Tenn. 2011), or otherwise prevents the prevailing party from
        receiving meaningful relief in the event of a favorable judgment, see Knott v.
        Stewart Cnty., 207 S.W.2d 337, 338 (Tenn. 1948); Cnty. of Shelby v.


        2
         In support of this representation, the Respondents attached an affidavit of one Melinda Toney, a
Sentence Analyst 1 with TDOC. Ms. Toney stated that Rishton was released from custody upon the
expiration of his sentence in December of 2012. In his response to the motion to dismiss, Rishton does not
dispute that he no longer is in TDOC custody.

                                                   -3-
       McWherter, 936 S.W.2d 923, 931 (Tenn. Ct. App. 1996). This Court has
       recognized a limited number of exceptional circumstances that make it
       appropriate to address the merits of an issue notwithstanding its ostensible
       mootness: (1) when the issue is of great public importance or affects the
       administration of justice; (2) when the challenged conduct is capable of
       repetition and evades judicial review; (3) when the primary dispute is moot but
       collateral consequences persist; and (4) when a litigant has voluntarily ceased
       the challenged conduct. Lufkin, 336 S.W.3d at 226 n.5 (citing Norma Faye
       Pyles Lynch Family Purpose LLC, 301 S.W.3d at 204).

City of Memphis v. Hargett, No. M2012-02141-SC-R11-CV, - - - S.W.3d - - - -, 2013 WL
5655807, at **4-5 (Tenn. Oct. 17, 2013).

              Writ of certiorari cases involve reviewing the actions of lower boards and
tribunals. See generally McCallen v. City of Memphis, 786 S.W.2d 633, 638 (Tenn. 1990).
The action challenged here is the warden’s decision to restrict Rishton’s ability to have a
musical instrument. Rishton, however, no longer is in TDOC custody. This being so, we fail
to see what relief we could render to Rishton. Additionally, our Supreme Court has stated:
“We have repeatedly held that where only the taxing of the costs is involved and the major
question has become moot that we will not consider the question.” State ex rel. Lewis v.
State, 347 S.W.2d 47, 48 (Tenn. 1961). We hold that this case has become moot on appeal.
None of the exceptional circumstances that would lead us to address an ostensibly moot case
are present here.

                “The ordinary practice in disposing of a case that has become moot on appeal
is to vacate the judgment and remand the case with directions that it be dismissed.” McIntyre
v. Traughber, 884 S.W.2d 134, 138 (Tenn. Ct. App. 1994). However, when a trial court
already has dismissed a case that is moot on appeal, we simply may affirm that dismissal.
See Pylant v. Haslam, No. M2011-02341-COA-R3-CV, 2012 WL 3984648, at *4 (Tenn. Ct.
App. Sept. 11, 2012), no appl. perm. appeal filed. As Rishton appeals from a dismissal of
his case, and, as we hold that this case is moot on appeal, we affirm the dismissal by the Trial
Court.




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                                       Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Bruce Rishton, and his surety, if any.


                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE




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