CHARLES MONTAGUE,                    )    Davidson Chancery
                                     )    No. 96-3872-III
      Plaintiff/Appellant,           )
                                     )
VS.                                  )
                                     )
TENNESSEE DEPARTMENT OF              )    Appeal No.
CORRECTION and WARDEN                )    01A01-9711-CH-00667
HOWARD CARLTON,                      )

      Defendants/Appellants.
                                     )
                                     )
                                                         FILED
                                                              May 29, 1998
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE            Cecil W. Crowson
                                                   Appellate Court Clerk
       APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE

               HONORABLE ELLEN HOBBS LYLE, CHANCELLOR


Charles Montague, #142349
7475 Cockrill Bend Industrial Road
Nashville, Tennessee 37243
PRO SE/PLAINTIFF/APPELLANT


Sohnia W. Hong
Assistant Attorney General
425 Fifth Avenue North
Second Floor, Cordell Hull Building
Nashville, Tennessee 37243
ATTORNEY FOR DEFENDANTS/APPELLEES



                    MODIFIED, AFFIRMED AND REMANDED.



                                     HENRY F. TODD
                                     PRESIDING JUDGE, MIDDLE SECTION




CONCUR:
BEN H. CANTRELL, JUDGE

CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
CHARLES MONTAGUE,                             )       Davidson Chancery
                                              )       No. 96-3872-III
       Plaintiff/Appellant,                   )
                                              )
VS.                                           )
                                              )
TENNESSEE DEPARTMENT OF                       )       Appeal No.
CORRECTION and WARDEN                         )       01A01-9711-CH-00667
HOWARD CARLTON,                               )
                                              )
       Defendants/Appellants.                 )



                                     OPINION


       The plaintiff, a prisoner in the custody of the Tennessee Department of Correction,

brought this action against the Department and its Commissioner seeking a declaratory judgment

that he is entitled to a refund of $64.00 charged against his custodial account for a key lost by

the prisoner.



       The Trial Court sustained a motion to dismiss for failure to state a claim for which relief

can be granted.



       The complaint states:

                6)     On September 4, 1995, I, Charles Montague, filled out
                a withdrawal for $64.00 Dollars. The money came from my
                Inmate Trust Fund Account that’s within the Tennessee
                Department of Correction. The money was for the
                replacement of a key to room number 12-201, at Northeast
                Correctional Center. I had loss the key to said room on the
                above date.

                7)      On September 5, 1995, the lock and key was replaced
                by Sgt. Baker. The key and lock however, was reassigned to
                another door/room within Northeast Correctional Center.

                8)      On September 21, 1995, the key that I lost was found
                and turned in to operations at Northeast Correctional Center,
                and the unit management team was notified and they retrieved
                the key.

                9)     On September 21, 1995, plaintiff filled out a inmate
                information request form to Warden Howard Carlton, and Mr.
                Carlton routed it to Sgt. Baker. Contained on the information

                                             -2-
               request form was my request for a refund. However, Sgt.
               Baker informed me that I would not be receiving any refund
               because the lock cylinder and key was in use in another door
               at N.E.C.C.


       The order of the Trial Court states:

                       In the above-captioned matter the petitioner filed a
               petition for declaratory judgment challenging the policies of
               the Tennessee Department of Correction concerning lost keys.
               He seeks return of $54.00 withdrawn from his inmate trust
               account for the replacement of a lost key.

                       Tennessee Code Annotated section 4-5-223 and 4-5-
               224 allow an individual to petition an agency for declaratory
               order regarding the applicability of the statute, rule or order
               and then, if denied, file an action in the Chancery Court of
               Davidson County. But to use this procedure the policies
               under attack must be “rules” as contemplated by the Uniform
               Administrative Procedures Act. Tennessee Code Annotated
               section 4-5-102(10) defines a “rule” as an agency statement
               of general applicability that implements or prescribes law or
               policy or describes the procedures or practice requirements of
               the agency. It does not include “statements concerning only
               the internal management of state government.”

                       In the case at bar the policy for charging inmates for
               keys and lock cylinders does not fit within the definition of
               “rules” as prescribed by Tennessee Code Annotated section
               4-5-102(10). Accordingly, the policies are not subject to
               review for declaratory relief.

                        It is therefore ORDERED that the above-captioned
               matter is dismissed with prejudice. In that the petitioner has
               qualified to proceed as a pauper, the Court assesses only state
               litigation tax against the plaintiff.


       This Court agrees with the conclusion of the Trial Judge that a suit for declaratory

judgment is not an appropriate vehicle for recovery of $64.00 if incorrectly charged to plaintiff.

Moreover, even if the Trial Court should have granted any relief due under the facts, the facts

alleged in the complaint do not support a refund of the $64.00 as claimed.



       The loss or misplacement of a key to a lock on a door in a correctional institution is a

serious matter, and requires a replacement lock operated by a different key. The finding of the

lost key does not obviate the expense of the new lock.




                                               -3-
       Despite the pauper’s oath, the plaintiff is liable for all costs of this proceeding. This

appeal is declared to be a frivolous appeal requiring the assessment of attorney fees on remand.



       The judgment of the Trial Court is modified to render judgment against plaintiff for all

costs accrued in that Court. As modified, said judgment is affirmed. Costs of this appeal are

taxed against the plaintiff. The cause is remanded to the Trial Court for ascertainment of fees

for frivolous appeal and the entry and enforcement of judgment in conformity with this opinion.



                      MODIFIED, AFFIRMED AND REMANDED.



                                                     _________________________________
                                                     HENRY F. TODD
                                                     PRESIDING JUDGE, MIDDLE SECTION




CONCUR:


_____________________________
BEN H. CANTRELL, JUDGE



CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE




                                              -4-
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT NASHVILLE


CHARLES MONTAGUE,                              )      Davidson Chancery
                                               )      No. 96-3872-III
       Plaintiff/Appellant,                    )
                                               )
VS.                                            )      Appeal No.
                                               )      01A01-9711-CH-00667
TENNESSEE DEPARTMENT OF                        )
CORRECTIONS,

       Defendant/Appellee,
                                               )
                                               )
                                               )
                                                               FILED
                                                                   July 1, 1998

                                                              Cecil W. Crowson
                                       ORDER                 Appellate Court Clerk


       The appellant’s second petition for rehearing is denied, and the costs incident thereto are

adjudged against the appellant.



                                              ___________________________________
                                              HENRY F. TODD
                                              PRESIDING JUDGE, MIDDLE SECTION


                                              ___________________________________
                                              BEN H. CANTRELL, JUDGE


                                              ___________________________________
                                              WILLIAM C. KOCH, JR., JUDGE
