                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                Submitted on Briefs March 27, 2002



                  LATASHA MARIE WHITTINGTON-BARRETT v.
                           JERRY HAYES, ET AL.

                       Appeal from the Chancery Court for Johnson County
                           No. 5006    G. Richard Johnson, Chancellor

                                            FILED APRIL 16, 2002

                                      No. E2001-01277-COA-R3-CV



LaTasha Marie Whittington-Barrett (“Plaintiff”), who is currently incarcerated by the State of
Tennessee, filed a petition seeking a copy of Plaintiff’s medical and psychiatric records. As grounds
for the petition, Plaintiff cited a Tennessee Department of Corrections rule which requires a court
order before TDOC will release copies of the inmate’s health records directly to the inmate. The
defendants, prison Health Administrator Jerry Hayes and prison Mental Health Psychological
Examiner David Dobbins (“Defendants”), filed a Motion to Dismiss or for Summary Judgment.1
The Trial Court granted Defendants summary judgment. Plaintiff appeals. We vacate the summary
judgment and remand.


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

                                              Case Remanded.


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J.,
and HERSCHEL P. FRANKS, J., joined.

LaTasha Marie Whittington-Barrett, pro se, Mountain City, Tennessee.

Paul G. Summers, Michael E. Moore and Stephanie R. Reevers, Nashville, Tennessee, for the
Appellees, Jerry Hayes and David Dobbins.


        1
           The State Attorney General’s office filed the Motion to Dismiss or for Summary Judgment on behalf of the
Defendan ts.
                                                         OPINION

                                                        Background

                  In October 1999, Plaintiff, who is currently incarcerated at Northeast Corrections
Complex, filed a petition (“Petition”) seeking copies of Plaintiff’s medical and psychiatric records.2
Plaintiff requested that the State produce Plaintiff’s medical and psychiatric records contained in a
total of six files. Plaintiff named as defendants two employees of the State of Tennessee, the health
administrator and psychological examiner for Northeast Corrections Complex. Plaintiff stated in
the Petition that these records were necessary for a civil rights lawsuit Plaintiff was planning to bring
against state prison medical officials. In support of the Petition, Plaintiff cited a Tennessee
Department of Corrections rule, Rule G5 (“TDOC Rule G5”). TDOC Rule G provides, in pertinent
part, as follows:

                   G.        Inmate Access to Health Records:

                             1.        Inmates have a limited right of access to their own health
                                       records. Inmates desiring to review their own health records
                                       shall make a written request to the health administrator, which
                                       shall include the purpose of the review and the specific
                                       information requested. Arrangements shall be made by the
                                       health administrator for the specific information to be
                                       reviewed in the presence of a physician, mid-level provider,
                                       licensed nurse, or medical records clerk. . . .

                             3.        Prior to reviewing the health record with the inmate, the
                                       record shall be purged of all psychiatric/psychological
                                       materials, any materials received from outside sources and
                                       any information which may jeopardize the safety of the
                                       inmate or the institution.

                             4.        Psychiatric/psychological records shall not be reviewed with
                                       an inmate without consultation with the treating or a
                                       knowledgeable psychiatric/psychological professional. If this
                                       consultant believes that the content of the psychological
                                       records should not be released to the inmate or that they
                                       should be released only in part or under special conditions
                                       due to the anticipated impact upon the inmate, the records, or


        2
            In the Petition , Plaintiff is se lf-described as a transsexua l.

                                                               -2-
                                     any part thereof, may be withheld pending a court order to
                                     release the records.

                           5.        Copies of the health record shall not be released directly to
                                     the inmate, except by court order. Exception to this release
                                     shall be made only when an inmate is personally involved in
                                     a lawsuit directly involving medical issues which would
                                     require the use of his/her medical records, as verified by the
                                     staff attorney or Office of the Attorney General.

(emphasis added).

                Defendants filed a Motion to Dismiss or for Summary Judgment. Defendants
contended in their motion that the Trial Court had no jurisdiction to hear the Petition, in part,
because Plaintiff was seeking discovery before Plaintiff’s civil lawsuit was filed. Defendants also
argued the Petition was moot because Plaintiff had been allowed to review and acquire copies of
selected portions of Plaintiff’s medical records. Defendants cited correspondence in which Plaintiff
acknowledged this occurred. The correspondence was from the State Attorney General’s office to
prison officials regarding Plaintiff’s request for medical and mental health records. The bottom of
the correspondence page provides, in pertinent part, as follows:

                  I LaTasha Barrett . . . have reviewed my medical and mental heath
                  record. Selected pages of record was [sic] copied and returned to me
                  on October 1, 1999 by Health Administrator Luther Townley as per
                  order of Attorney General office.

This acknowledgment (“Acknowledgment”) is followed by the signatures of Plaintiff and the
prison’s health administrator.

                 In a pleading filed in December 1999, captioned “Declaration . . . ,” Plaintiff disputed
that Plaintiff was allowed to review and copy all six medical and psychiatric files.3 Instead, Plaintiff
stated in the Declaration that the State did not allow Plaintiff to review and receive copies of four
of the six files. The Declaration states that it is a sworn statement and is signed by Plaintiff.

                Thereafter, the Trial Court granted Defendants summary judgment as a matter of law
on the ground that Plaintiff’s Petition was moot. In its Final Order, the Trial Court stated, in
pertinent part, as follows:



         3
            The Declaration was filed by Plaintiff in support of a motion for change of venue. When Plaintiff filed the
Petition, Plaintiff was housed at Northeast Corrections Complex in Moun tain City, Tennessee, but, thereafter, was
transferred to another prison facility in Morgan County, Tennessee. After a brief stay, Plaintiff was transferred back
to Northeast Corrections Comp lex. With each of Plaintiff’s transfers, Plaintiff filed motions seeking a change of venue.

                                                          -3-
                          In this cause, Plaintiff seeks a copy of [Plaintiff’s] medical
                  and psychiatric records held by [Defendants]. It appears from the
                  attached [Acknowledgment] that Plaintiff has reviewed the requested
                  records and [Defendants have] made copies of such records that
                  Plaintiff requested, therefore, this cause is moot.

                         This cause is dismissed as there is no genuine issue of
                  disputed material fact. T.R.C.P. 56.

                            The costs of this cause are taxed to Plaintiff. . . .

(emphasis added).4 The Final Order did not address Defendants’ argument regarding whether the
Trial Court had jurisdiction to hear the Petition.

                 Thereafter, Plaintiff filed a Tenn. R. Civ. P. 59.04 motion to alter or amend judgment.
Although not exactly stated as such, Plaintiff argued in the Rule 59 motion that Defendants’ motion
for summary judgment should not have been granted because: (1) Plaintiff’s Petition is not a lawsuit
and, therefore, not subject to dismissal under Tenn. R. Civ. P. 56; (2) Defendants, as the moving
parties, failed to carry their burden of establishing there was no genuine issue of material fact since
the Acknowledgment is not a sworn affidavit; and (3) a genuine issue of material fact exists with
respect to whether Plaintiff has been allowed to review and receive copies of all six medical and
psychiatric files. In support of the Rule 59 motion, Plaintiff filed a second Declaration in which
Plaintiff again stated that Plaintiff had not been allowed by Defendants to review four out of the six
medical and psychiatric files.5

                The Trial Court denied Plaintiff’s Rule 59 motion to alter or amend judgment.
Plaintiff appeals. We vacate the summary judgment and remand.

                                                      Discussion

               On appeal and although not exactly stated as such, Plaintiff raises the following
issues: (1) whether Plaintiff’s Petition was subject to dismissal on a motion for summary judgment
because, according to Plaintiff, the Petition is not a lawsuit; (2) whether the Trial Court erred in
granting summary judgment to Defendants because there is a genuine issue of material fact regarding
whether Plaintiff was allowed by Defendants to review and receive copies of all six of Plaintiff’s
medical and psychiatric files; (3) whether the Trial Court erred in granting judgment as a matter of
law to Defendants because their motion for summary judgment was improperly supported by an


         4
           The technical record on appeal shows that the correspondence which contains the Acknowledgment was not
attached to Defendan ts’ Motion to Dismiss or for Sum mary Jud gme nt but was attached to the Final Order.

         5
           Although confusing, Plaintiff also stated in this Declaration Plaintiff had a total of 9 volumes of medical and
psychiatric files and had been allowed to review and receive copies only from the 9 th volume.

                                                           -4-
unsworn statement; (4) whether the Trial Court erred in failing to consider Plaintiff’s request to be
transported from prison to the Trial Court for the hearing on Defendants’ Motion to Dismiss or for
Summary Judgment; and (5) whether the Trial Court erred in assessing costs to Plaintiff.

                On appeal, Defendants contend the Trial Court correctly granted them summary
judgment. In addition and although not exactly stated as such, Defendants raise the following
additional issue on appeal: (1) whether the Trial Court has jurisdiction to hear Plaintiff’s Petition.

                We first review Defendants’ issue on appeal regarding whether the Trial Court has
jurisdiction to hear Plaintiff’s Petition. See First Am. Trust Co. v. Franklin-Murray Dev. Co., L.P.,
59 S.W.3d 135, 140 (Tenn. Ct. App. 2001) (citing Tenn. R. App. P. 13(b)). While the Trial Court
did not address this issue in its Final Order, Tenn. R. App. P. 13(b) directs this Court to consider
whether the trial court and this Court have subject matter jurisdiction whether or not the issue is
raised on appeal. Subject matter jurisdiction is the “court’s power to adjudicate a particular
controversy brought before it.” Id. “Courts derive their subject matter jurisdiction from [our State]
Constitution or from legislative act, . . . and cannot exercise jurisdictional powers that have not been
conferred directly on them expressly or by necessary implication.” Id. (citations omitted).

               Defendants argue Plaintiff’s reliance upon Tenn. R. Civ. P. 26 is misplaced because
Rule 26 does not provide for discovery in anticipation of litigation. Defendants also contend the
statutory provisions which address the right to obtain one’s medical records and the procedure
therefor, Tenn. Code Ann. §§ 10-7-504(a)(1) and 63-2-101, do not create a cause of action for
Plaintiff.6




       6
           Tenn. Code Ann. § 10-7-504(a)(1) provides, in pertinent part, the following:

                 The me dical re cord s of patients in state, cou nty and municipal hospitals and
                 medical facilities, an d the me dical re cord s of person s receiving me dical treatment,
                 in whole or in part, at the expense of the state, county or municipality, shall be
                 treated as confidential and shall not be open for inspection by members of the
                 pub lic. . . .

       Tenn. Code Ann. § 63-2-101(a) provides, in pertinent part, the following:

                 (a)(1) Notwithstanding any other pro vision of law to the contrary, a health care
                 provider shall furnish to a patient or a patient’s authorized representative a copy or
                 summ ary of such patient’s medical records, at the option of the health care
                 provider, within ten (10) wo rking days up on requ est in writing by the patient or
                 such representative.

                  (2) If a provider fails to comply with the provisions of subdivision (a)(1), proper
                 notice shall be given to the provider’s licensing board or boards and the provider
                 may be subject to disciplinary actions which include sanctions and a m onetary fine.

                                                           -5-
              Defendants’ argument appears to be that Plaintiff cannot obtain a court order to obtain
copies of medical records unless Plaintiff already has a lawsuit pending. In other words, Plaintiff
cannot bring a lawsuit for the sole purpose of obtaining copies of Plaintiff’s medical records.
Defendants, however, do not dispute that TDOC Rule G5 applies.

                 We have reviewed the statutes cited by Defendants and TDOC Rule G5 upon which
Plaintiff relies. The statutes cited by Defendants do not address how a prison inmate obtains copies
of his or her health records. Defendants have cited no rule or statute which prohibits Plaintiff from
bringing a lawsuit against Defendants for the sole purpose of securing a court order to obtain a
release of Plaintiff’s health record. In contrast, the plain language of TDOC Rule G5 states that an
inmate cannot obtain directly a copy of his or her health records “except by court order.” We hold
that TDOC Rule G5 does not limit Plaintiff’s direct access to copies of Plaintiff’s health records to
discovery in pending litigation. The rule simply states that, except for one exception not relevant
here, copies of an inmate’s health records shall not be released directly to the inmate except by court
order. Plaintiff attempted to follow TDOC procedure by filing this lawsuit. We hold the Trial Court
has subject matter jurisdiction “by necessary implication.” First American Trust Co. v. Franklin-
Murray Dev. Co., L.P., 59 S.W.3d at 140. Accordingly, we hold Defendants’ argument that the Trial
Court does not have jurisdiction to hear this matter fails.

               Next, we address Plaintiff’s issue on appeal regarding whether the Petition was
subject to dismissal on a motion for summary judgment. According to Plaintiff, the Petition is not
a lawsuit and, therefore, not subject to dismissal on a motion for summary judgment. Plaintiff’s
attempt to draw a distinction between the Petition and a lawsuit fails. The Tennessee Rules of Civil
Procedure apply to civil actions filed in our State’s circuit and chancery courts. Tenn. R. Civ. P. 1.
Civil actions are defined as “[a]ll actions in law or equity. . .” and the Petition falls under this
definition. Tenn. R. Civ. P. 2. When the Petition was filed with the Trial Court clerk, a civil action
was commenced. See Tenn. R. Civ. P. 3. Defendants’ Motion to Dismiss or for Summary
Judgment was filed pursuant to Rules 12 and 56 of the Tennessee Rules of Civil Procedure. Under
Rule 1 of the Tennessee Rules of Civil Procedure, the Petition, as a civil action, is subject to
dismissal by the Trial Court upon a valid Rule 12 motion to dismiss or a Rule 56 motion for
summary judgment. Therefore, we find Plaintiff’s first issue on appeal to be without merit.

                We now turn our attention to the pivotal issue in this matter, which is did the Trial
Court err in granting summary judgment to Defendants. Our Supreme Court outlined the standard
of review of a motion for summary judgment in Staples v. CBL & Assoc., 15 S.W.3d 83 (Tenn.
2000):

               The standards governing an appellate court's review of a motion for summary
               judgment are well settled. Since our inquiry involves purely a question of
               law, no presumption of correctness attaches to the lower court's judgment,
               and our task is confined to reviewing the record to determine whether the
               requirements of Tenn. R. Civ. P. 56 have been met. See Hunter v. Brown,
               955 S.W.2d 49, 50-51 (Tenn.1997); Cowden v. Sovran Bank/Central South,

                                                 -6-
               816 S.W.2d 741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56.04
               provides that summary judgment is appropriate where: (1) there is no genuine
               issue with regard to the material facts relevant to the claim or defense
               contained in the motion, see Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993);
               and (2) the moving party is entitled to a judgment as a matter of law on the
               undisputed facts. See Anderson v. Standard Register Co., 857 S.W.2d 555,
               559 (Tenn.1993). The moving party has the burden of proving that its motion
               satisfies these requirements. See Downen v. Allstate Ins. Co., 811 S.W.2d
               523, 524 (Tenn.1991). When the party seeking summary judgment makes a
               properly supported motion, the burden shifts to the nonmoving party to set
               forth specific facts establishing the existence of disputed, material facts
               which must be resolved by the trier of fact. See Byrd v. Hall, 847 S.W.2d at
               215.

               To properly support its motion, the moving party must either affirmatively
               negate an essential element of the non-moving party's claim or conclusively
               establish an affirmative defense. See McCarley v. West Quality Food Serv.,
               960 S.W.2d 585, 588 (Tenn.1998); Robinson v. Omer, 952 S.W.2d 423, 426
               (Tenn.1997). If the moving party fails to negate a claimed basis for the suit,
               the non-moving party's burden to produce evidence establishing the existence
               of a genuine issue for trial is not triggered and the motion for summary
               judgment must fail. See McCarley v. West Quality Food Serv., 960 S.W.2d
               at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving party
               successfully negates a claimed basis for the action, the non-moving party may
               not simply rest upon the pleadings, but must offer proof to establish the
               existence of the essential elements of the claim.

               The standards governing the assessment of evidence in the summary
               judgment context are also well established. Courts must view the evidence
               in the light most favorable to the nonmoving party and must also draw all
               reasonable inferences in the nonmoving party's favor. See Robinson v. Omer,
               952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d at 210-11. Courts should grant
               a summary judgment only when both the facts and the inferences to be drawn
               from the facts permit a reasonable person to reach only one conclusion. See
               McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995); Carvell v. Bottoms, 900
               S.W.2d 23, 26 (Tenn.1995).

Staples, 15 S.W.3d at 88-89.

               Plaintiff contends on appeal that the Trial Court erred in granting summary judgment
to Defendants because there is a genuine issue of material fact regarding whether Defendants
allowed Plaintiff to review and receive copies of all of Plaintiff’s requested medical and psychiatric
records. As discussed, the Trial Court, in its Final Order, found that Plaintiff’s Petition was moot
because it “appear[ed]” from the Acknowledgment that Plaintiff had been allowed to review and

                                                 -7-
make copies of Plaintiff’s medical records as requested. The record on appeal, however, shows that
Plaintiff filed the Declaration after Defendants filed their motion but before the Trial Court entered
its Final Order. The Declaration shows Plaintiff claims Defendants had not allowed Plaintiff to
review approximately four of the six files that contain Plaintiff’s medical and psychiatric records.
 We find a genuine issue of material fact exists regarding whether Plaintiff was allowed by
Defendants to review and receive copies of Plaintiff’s medical and psychiatric records as requested
by Plaintiff, subject to the restrictions contained in TDOC Rule G. Accordingly, we hold the case
was not moot, and that due to the existence of a genuine issue of material fact, summary judgment
was not appropriate. Therefore, we vacate the Trial Court’s grant of summary judgment. See Tenn.
R. Civ. P. 56.04. We do not hold by this Opinion that Plaintiff has an unlimited right of access to
Plaintiff’s health records. Rather, we hold only that based on the record now before us, there is a
genuine issue of material fact as to whether Plaintiff has been allowed access to Plaintiff’s health
records as provided for by TDOC Rule G, including the restrictions contained in Rule G.

                We next review the issue on appeal regarding whether the Trial Court erred in failing
to decide Plaintiff’s request to be transported from prison to the hearing on the Defendants’ Motion
to Dismiss or for Summary Judgment.7 While the Trial Court did not address this matter in its Final
Order, we find this issue warrants discussion to prevent needless litigation. See Tenn. R. App. P.
13(b).

                 Our Supreme Court held that “although incarcerated plaintiffs have a constitutional
right to initiate and prosecute a civil action, they do not retain an absolute right . . . to be present at
each stage of the proceedings.” Logan v. Winstead, 23 S.W.3d 297, 302 (Tenn. 2000). Accordingly,
Plaintiff does not have a constitutional right to be present at such a hearing. Moreover, Plaintiff’s
right to pursue civil litigation while incarcerated is limited. Price v. Johnston, 334 U.S. 266, 285,
68 S.Ct. 1049, 1060 (1948); Sanjines v. Ortwein & Assoc., P.C., 984 S.W.2d 907, 910 (Tenn. 1998)
(quoting Whisnant v. Byrd, 525 S.W.2d 152, 153 (Tenn. 1975) (holding that this right is “‘qualified
and restricted’”).8 In addition, in the interest of prison administration, this Court has recognized that
the trial court may impose “appropriate limitations” on discovery by a prisoner who has brought a
civil lawsuit. Reid v. State, 9 S.W.3d 788, 792 (Tenn. Ct. App. 1999).

              Plaintiff also contends on appeal that the Trial Court erred in granting summary
judgment to Defendants because the Acknowledgment upon which the Trial Court based its decision



          7
              Althou gh Plain tiff failed to provid e any a rgum ent in support of this issue in P laintiff’s brief, we w ill address
this issue to assist the T rial Co urt on rem and . See Ct. App. Tenn. R. 6; Forde v. Fisk U niv., 661 S.W.2d 883, 886 (Tenn.
Ct. App. 1983) (holding that where the appellate brief fails to set forth any supp orting arguments, this Court usually will
not consider the issue on appeal).

          8
             It shou ld be noted the holding of Wh isnant v. Byrd, that a prisoner has a constitutional right to a stay of his
civil proceedings while his criminal conviction is being appealed, was overruled by Sanjines v. Ortwein & Asso c., P.C .,
984 S.W .2d at 910 . See also Logan v. Winstead, 23 S.W.3d 297, 302 (Tenn. 2000) (holding that an inm ate had no
abso lute right to have his civ il litigation stayed until his release or to be present for each stage of the case’s proceedings).

                                                                -8-
is not a sworn statement. Since we have determined that summary judgment is not appropriate in
this matter due to the existence of a genuine issue of material fact, this issue is pretermitted. In
addition, Plaintiff raises an issue regarding the Trial Court’s assessment of costs against Plaintiff.
In light of our determination that a grant of summary judgment was not appropriate in this matter,
this issue also is pretermitted.




                                             Conclusion

                The judgment of the Trial Court is vacated, and this cause is remanded to the Trial
Court for further proceedings as required consistent with this Opinion, and for collection of the costs
below. The costs on appeal are assessed against the Appellees, Jerry Hayes and David Dobbins.




                                                       ___________________________________
                                                       D. MICHAEL SWINEY, JUDGE




                                                 -9-
