                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  June 10, 2015 Session


                    JOE MOSLEY v. STATE OF TENNESSEE

          Appeal from the Tennessee Claims Commission Western Division
              No. T20131559 Commissioner Nancy Miller-Herron
                       ________________________________

                 No. W2014-01307-COA-R3-CV – Filed June 30, 2015
                       _________________________________


Plaintiff, a former inmate with the Tennessee Department of Correction, filed suit in the
Tennessee Claims Commission against the State of Tennessee for monetary damages.
Plaintiff alleged that the State held him in custody longer than the term of his sentence and
improperly applied certain sentence-reducing credits. He titled his cause of action as one for
“negligent care, custody, and control” of which he asserted the Claims Commission had
jurisdiction pursuant to Tennessee Code Annotated Section 9-8-307. The State filed a motion
to dismiss, arguing that plaintiff‟s claim was one for the “negligent deprivation of statutory
rights,” and that the relevant statutes did not provide a private right of action. The Claims
Commission granted the State‟s motion to dismiss. Plaintiff appealed. Discerning no error,
we affirm.


    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission
                                     Affirmed

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which ARNOLD B.
GOLDIN, J., and KENNY ARMSTRONG, J., joined.

Andrew Love, Nashville, Tennessee, for the appellant, Joe Mosley.

Herbert H. Slatery, III., Attorney General and Reporter; Andrée Blumstein, Solicitor General;
Pamela S. Lorch, Senior Counsel, for the appellee, State of Tennessee.


                                         OPINION
                                                Background

       This appeal involves the Tennessee Claims Commission‟s (“Commission”) dismissal
of Plaintiff/Appellant Joe Mosley‟s claim for wrongful incarceration based on, inter alia, a
lack of subject matter jurisdiction. On May 29, 2013, Mr. Mosley, acting pro se, filed a
Claim for Damages in the Division of Claims Administration against the
Defendant/Appellant State of Tennessee (“the State”).
        Mr. Mosley had previously been an inmate in the custody of the Tennessee
Department of Correction (“TDOC”) after he pleaded guilty to three counts of Aggravated
Sexual Battery. According to Mr. Mosley, he was initially arrested on May 7, 2002, and
pleaded guilty to the offenses on November 25, 2002. He was sentenced to serve ten years in
jail. He asserts that he remained incarcerated from the date of his arrest until he was released
on October 4, 2012. In his Claim for Damages filed with the Division of Claims
Administration, Mr. Mosley claimed that he ultimately served four months and twenty-seven
days more than he was sentenced. He sought damages for enslavement, pain and suffering,
wrongful incarceration, and endangerment of life. Because the Division of Claims
Administration did not take action within ninety days after Mr. Mosley filed his claim, the
case was transferred to the Commission pursuant to Tennessee Code Annotated Section 9-8-
402(c).1
       Mr. Mosley, now acting through counsel, subsequently filed his Complaint for
Damages (“complaint”) with the Commission on February 12, 2014. He listed his cause of
action as “negligent[] care, custody and control of an inmate.” Specifically, he alleged that
the State owed him a duty to release him from incarceration at the expiration of his sentence,
and the State breached this duty by failing to apply certain sentence reduction credits,
including his pre-trial jail credit. Mr. Mosley asserted that the State violated at least two
statutes, namely Tennessee Code Annotated Sections 40-35-501(i)(1)2 and 40-23-101(c),3

       1
           Tennessee Code Annotated Section 9-8-402(c) provides:

                         The division of claims administration shall investigate every claim
                 and shall make every effort to honor or deny each claim within ninety (90)
                 days of receipt of the notice. . . . If the division fails to honor or deny the
                 claim within the ninety-day settlement period, the division shall
                 automatically transfer the claim to the administrative clerk of the claims
                 commission.
       2
        Tennessee Code Annotated Section 40-35-101(i)(1) provides that an inmate who committed certain
enumerated offenses shall serve 100% of his sentence “less sentence credits earned and retained.” The
maximum percentage of credits an inmate can earn may amount to no more than 15% of his sentence.
       3
           Tennessee Code Annotated Section 40-23-101(c) provides that a criminal defendant convicted of a
                                                       2
when it incarcerated him for longer than his sentence and failed to apply certain sentence-
reducing credits. As such, the State ultimately retained custody of him for longer than his ten-
year sentence; specifically, Mr. Mosley alleged that the State‟s alleged failure to properly
award, calculate, and apply his sentence reduction credits resulted in Mr. Mosley serving 697
more days than he should have.4 Mr. Mosley also alleged that, on October 3, 2012, “some
agent of the [State] with decision-making authority realized [the State‟s] errors and ordered
[Mr. Mosley] released immediately.” Because of his allegedly unlawful incarceration, Mr.
Mosley asserted that he suffered damages including lost wages, pain and suffering, and
permanent mental and emotional injuries.
       The State did not file an answer to Mr. Mosley‟s complaint; instead it filed a motion to
dismiss on March 13, 2014. In its motion, the State argued that the Commission lacked
subject matter jurisdiction over Mr. Mosley‟s claim. The State contended that Mr. Mosley‟s
claim was not actually one of negligent care, custody, and control pursuant to Tennessee
Code Annotated Section 9-8-307(a)(1)(E). Instead, the State asserted that Mr. Mosley‟s claim
falls under subsection (a)(1)(N), which permits the Commission to preside over cases
involving a “negligent deprivation of statutory rights” only when the claimant demonstrates
that the legislature “expressly conferred a private right of action in favor of the claimant
against the state for the state‟s violation of the particular statute‟s provisions.” To that end,
the State argued that Mr. Mosley had not, and could not, demonstrate that a private right of
action existed. Because no private right of action existed, the State argued that the
Commission lacked subject matter jurisdiction to preside over the claim. In addition, the
State contended that Mr. Mosley‟s claims also must be dismissed because he failed to pursue
both a declaratory order with TDOC and a declaratory judgment action with the Davidson
County Chancery Court.
       Mr. Mosley responded to the State‟s motion to dismiss on April 1, 2014. He argued
that the claim was properly cast as a claim for damages arising from the State‟s negligent
care, custody, and control. Mr. Mosley also stated that, if the Commission was “inclined to
grant the State‟s Motion, [he] moves the Commission to allow him 15 days to file an
Amended Complaint clarifying that he is relying on the negligent failure to release after the
expiration of [his] ten year sentence.”
       On June 9, 2014, the Commission granted the motion to dismiss, holding that the State
“correctly avers that the gravamen of Claimant‟s complaint is for negligent deprivation of a

crime shall receive credit on his sentence for the time served in jail prior to trial pending arraignment or trial.
        4
          Mr. Mosley‟s calculation of his time allegedly served differs between his Claim for Damages filed
with the Division of Claims Administration and his Complaint for Damages filed with the Commission. The
difference amounts to approximately 548 days. For purposes of this appeal, we rely on his allegations as set
forth in his complaint filed with the Commission.
                                                        3
statutory right.”5 The Commission also found that Mr. Mosley failed to exhaust his
administrative remedies before requesting relief from the Commission in failing to seek a
declaratory order from the TDOC and a declaratory judgment in the Davidson County
Chancery Court. Accordingly, Mr. Mosley‟s complaint was dismissed. He timely appealed.
                                                Issues
        Appellant presents two issues for review, as taken from his brief:
                1. Whether the Commission erred in its determination that it did
                not have jurisdiction to hear Appellant‟s case?
                2. Whether the Commission erred in denying Appellant leave to
                file an Amended Complaint?
                                       Standard of Review
       It is well settled that subject matter jurisdiction implicates a court‟s power to
adjudicate a particular case or controversy. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn.
2004); Earls v. Mendoza, No. W2010-01878-COA-R3-CV, 2011 WL 3481007, at *5 (Tenn.
Ct. App. Aug. 10, 2011). “In the absence of subject-matter jurisdiction, a court cannot enter a
valid, enforceable order.” Earls, 2011 WL 3481007, at *5 (citing Brown v. Brown, 281
S.W.2d 492, 497 (Tenn. 1955)). When subject matter jurisdiction is questioned, we must
ascertain whether the Tennessee Constitution, the Tennessee General Assembly, or the
common law have conferred upon the court the power to adjudicate the case before it. Id.
(citing Staats v. McKinnon, 206 S.W.3d 532, 542 (Tenn. Ct. App. 2006)). “Since a
determination of whether subject matter jurisdiction exists is a question of law, our standard
of review is de novo, without a presumption of correctness.” Fields v. Williams, No. W2012-
01949-COA-R3CV, 2013 WL 1845450, at *1 (Tenn. Ct. App. Apr. 30, 2013) (citing
Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000)).


                                             Discussion
                             Jurisdiction of the Claims Commission
       We begin with Mr. Mosley‟s argument that the Commission erred in dismissing his
complaint for lack of subject matter jurisdiction. Although the Commission found that the
gravamen of his claim pertained to the negligent deprivation of statutory rights, Mr. Mosley
points out that “[n]o provision of section 9-8-307(a)(1) specifically defines under what

        5
          The Commission‟s final order notes that the State disputes Mr. Mosley‟s allegation that he was
incarcerated by TDOC for more than ten years.
                                                   4
circumstances the state may be held liable for injuries resulting from the „[n]egligent care,
custody, and control of persons.‟” See Stewart v. State, 33 S.W.3d 785, 792 (Tenn. 2000).
Additionally, because the legislature has declared its intent that the “the jurisdiction of the
[C]laims [C]ommission be liberally construed to implement the remedial purposes of this
legislation,” Tenn. Code Ann. § 9-8-307(a)(3), Mr. Mosley contends that his cause of action
may be interpreted to fall within the purview of subsection (a)(1)(E). Despite these
contentions, he repeatedly alleged in his complaint that the negligence of the state officials
stems from a failure to properly apply certain statutes concerning his sentence.
       The Commission disagreed with Mr. Mosley‟s argument and found that it lacked
subject matter jurisdiction over his claims. It found that the State had “correctly aver[red] that
the gravamen of Plaintiff‟s Complaint is for negligent deprivation of a statutory right and that
the Commission has no jurisdiction to hear such a claim unless the statute contains a private
right of action.” As to the statutes concerning sentence calculation and expiration, the
Commission held that they did not confer a private right of action, therefore, depriving the
Commission of subject matter jurisdiction.
        It is well-established that the State of Tennessee, as a sovereign, is immune from
lawsuits “„except as it consents to be sued.‟” Brewington v. Brewington, 387 S.W.2d 777,
779 (Tenn. 1965). 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 by
law direct.” In 1984, the Tennessee General Assembly enacted a comprehensive procedure
for filing, prosecution, and disposition of monetary claims against the State. Mullins v. State,
320 S.W.3d 273, 278–79 (Tenn. 2010). This comprehensive statutory scheme included the
formation of the Tennessee Claims Commission, which was created to hear and determine
claims against the State. Id.; see Act of May 24, 2984, ch. 972, §§ 1, 5(a), 1984 Tenn. Pub.
Acts 1026, 1027–28 (codified at Tenn. Code Ann. § 9-8-301(a), -305(1). As the Supreme
Court opined in Mullins,
               The Claims Commission and its commissioners have exclusive
               jurisdiction to adjudicate all monetary claims against the State
               which fall within certain specified categories as defined by the
               statute. Id. §§ 5(a), 8(a), 1984 Tenn. Pub. Acts at 1028–30
               (codified at Tenn. Code Ann. §§ 9-8-305(1), –307(a)); Conley v.
               State, 141 S.W.3d 591, 597 (Tenn. 2004); see also Tenn. Code
               Ann. § 20–13–102(a). The legislature did not remove immunity
               for all claims against the State, but only those claims specified in
               section 9–8–307(a). It follows then that the Claims Commission
               lacks subject matter jurisdiction and has no authority to hear any
               claims that fall outside the categories enumerated in section 9-8-
               307(a). Stewart [v. State, 33 S.W.3d 785, 790 (Tenn. 2000)].
                                                 5
             The legislature made its intent clear in the 1985 amendment to
             the Act by stating: “[i]t is the intent of the general assembly that
             the jurisdiction of the claims commission be liberally construed
             to implement the remedial purposes of this legislation.” Act of
             March 25, 1985, ch. 105, § 1, 1985 Tenn. Pub. Acts 154, 154
             (codified at Tenn. Code Ann. § 9–8–307(a) (Supp. 1985)); see
             also Hembree v. State, 925 S.W.2d 513, 516 (Tenn. 1996). This
             is contrary to the general rule that statutes permitting lawsuits
             against the State “are in derogation of the state‟s inherent
             exemption from suit and must be strictly construed.” Beare Co.
             v. Olsen, 711 S.W.2d 603, 605 (Tenn.1986); see State ex rel.
             Allen v. Cook, 171 Tenn. 605, 106 S.W.2d 858, 860–61 (1937).

             In Stewart, we observed that courts should defer to the
             expressed intention of the legislature that a waiver of sovereign
             immunity be liberally construed “in cases where the statutory
             language legitimately admits of various interpretations,” but also
             cautioned that

                    [a] policy of liberal construction of statutes,
                    however, only requires this Court to give “the
                    most favorable view in support of the petitioner‟s
                    claim,” Brady v. Reed, 186 Tenn. 556, 563, 212
                    S.W.2d 378, 381 (1948), and such a policy “does
                    not authorize the amendment, alteration or
                    extension of its provisions beyond [the statute‟s]
                    obvious meaning.” Pollard v. Knox County, 886
                    S.W.2d 759, 760 (Tenn. 1994). Moreover,
                    “[w]here a right of action is dependent upon the
                    provisions of a statute . . . we are not privileged to
                    create such a right under the guise of a liberal
                    interpretation of it.” Hamby v. McDaniel, 559
                    S.W.2d 774, 777 (Tenn.1977).

             33 S.W.3d at 791 (alterations in original).


Mullins, 320 S.W.3d at 279. With the foregoing in mind, we turn to the text of Tennessee
Code Annotated Section 9-8-307.
                                              6
       Section 9-8-307(a)(1) provides that the Commission has exclusive jurisdiction to
determine all monetary claims against the State falling within several enumerated categories.
Although the statute provides twenty-three enumerated categories, only two are relevant to
this appeal, including:

                (E) Negligent care, custody and control of persons; [and]

                                                 * * *

                (N) Negligent deprivation of statutory rights created under
                Tennessee law, except for actions arising out of claims over
                which the civil service commission has jurisdiction. The
                claimant must prove under this subdivision (a)(1)(N) that the
                general assembly expressly conferred a private right of action in
                favor of the claimant against the state for the state‟s violation of
                the particular statute‟s provisions[.]

       Tenn. Code Ann. § 9-8-307(a)(1). Mr. Mosley alleges that the State‟s actions or
omissions in this case amounted to “[n]egligent care, custody and control” under subsection
(a)(1)(E). Conversely, the State argues in its brief that Mr. Mosley “seeks to recast his claim
as one alleging negligent care, custody and control,” but that his allegations of negligence
stem from the State‟s alleged failure to comply with certain statutory provisions related to
sentence calculation.6 Accordingly, the State contends that Mr. Mosley‟s claim falls squarely
under subsection (a)(1)(N). We agree.

       Mr. Mosley‟s claim is clearly predicated on the State‟s alleged failure to comply with
certain statutes concerning the calculation of his sentence and the application of certain
sentence-reducing credits. Assuming arguendo that the State was negligent in calculating Mr.
Mosley‟s sentence and corresponding credits, but for the State‟s negligence in following the
correct statutory provisions, Mr. Mosley would not have suffered any alleged damages
because his sentence and credits would have been correctly calculated. Other than conclusory
allegations, Mr. Mosley makes no other allegations that the care, custody, or control of the
State was otherwise negligent. Prior cognizable claims involving “[n]egligent care, custody
and control of persons” have involved the State‟s liability for physical injuries committed by
individuals within the State‟s control or by inmates in the custody of the State. See, e.g.,

        6
          In its brief, the State cites McGowan v. State, No. M2005-02465-COA-R3-CV, 2007 WL 2093465
(Tenn. Ct. App. July 17, 2007). McGowan has been designated as a Memorandum Opinion. Rule 10 of the
Rules of the Court of Appeals of Tennessee states that memorandum opinions “shall not be cited or relied on
for any reason in any unrelated case.” (emphasis added).
                                                    7
Stewart v. State, 33 S.W.3d 785, 792 (Tenn. 2000) (holding that the Commission has
jurisdiction over claims “where negligent control of a person by a state employee resulted in
injury”); Hembree v. State, 925 S.W.2d 513, 518 (Tenn. 1996) (holding that the Commission
had jurisdiction over a claim that an individual, who was mistakenly released from
involuntary commitment, shot and killed two individuals upon release); Cox v. State, 844
S.W.2d 173, 176 (Tenn. Ct. App. 1992) (allowing a claim for a rape committed by an inmate
out on work release). Here, there are no allegations that any person or instrumentality in the
care, custody, or control of the State caused any physical injuries to Mr. Mosley; instead, the
only injury alleged by Mr. Mosley concerns the State‟s statutory duty to release Mr. Mosley
from confinement based on statutorily-defined calculations. In a similar case where the
State‟s duty stemmed solely from a statute, this Court concluded that the claim fell within the
ambit of subsection (a)(1)(N). E.g., Draper v. State, No. E2002-02722-COA-R3-CV, 2003
WL 22092544, at *3 (Tenn. Ct. App. Sept. 4, 2003) (holding that because any duty of the
state to remove a child from an abusive home was statutory, mother‟s claim was outside the
ambit of subsection (a)(1)(E). Mr. Mosley has cited no cases where a claim involving a duty
conferred solely by statute was recognized as falling within Tennessee Code Annotated
Section 9-8-307(a)(1)(E). Accordingly, this claim clearly falls within a claim for “[n]egligent
deprivation of statutory rights[.]” Tenn. Code Ann. § 9-8-307(a)(1)(N).

        Because Mr. Mosley‟s claim is clearly premised on a “negligent deprivation of
statutory rights” as provided in subsection (a)(1)(N), he must also demonstrate that the
statutory rights he was deprived of provided for a private right of action. Here, Mr. Mosley‟s
complaint references at least two statutes concerning release eligibility and pre-trial jail
credits. In order for the Commission to properly obtain subject matter jurisdiction, these
statutes must expressly confer a private right of action in Mr. Mosley‟s favor. See Tate v.
State, No. W2002-00177-COA-R3-CV, 2003 WL 21026939 (Tenn. Ct. App. Apr. 14, 2003);
A’la v. State, No. E2001-03133-COA-R3-CV, 2002 WL 1838162 (Tenn. Ct. App. Aug. 13,
2002); Taylor v. State, No. W2000-01467-COA-MR3-CV, 2001 WL 873470 (Tenn. Ct. App.
July 31, 2001). We have reviewed the statutes referenced by Mr. Mosley and other possibly
relevant statutes related to the calculation of sentence time and sentence-reducing credits;
however, the statutory scheme simply does not grant a private right of action for the State‟s
alleged negligent deprivation. See Brewington, 387 S.W.2d at 779 (opining that a claimant
may sue the State only “as it consents to be sued.”) (internal quotations omitted). Mr.
Mosley‟s complaint was prompted by his belief that his release date was improperly
calculated, a concern of great importance to a previously incarcerated individual. However,
he “is couching a claim for deprivation of statutory rights as a claim of negligent care in an
effort to avoid having to point to language in the statute which confers a right of action.” See
Draper, 2003 WL 22092544, at *3. A private right of action does not exist in these
circumstances. Therefore, we affirm the Commission‟s decision to dismiss Mr. Mosley‟s
complaint based on a lack of subject matter jurisdiction.
                                               8
       Any issues regarding whether Mr. Mosley was required to seek a declaratory order or
declaratory judgment prior to bringing suit against the State with the Commission is
pretermitted.


                             Leave to File Amended Complaint
        Mr. Mosley also raises the issue of whether the trial court erred in denying him leave
to file an amended complaint. In his response to the State‟s motion to dismiss, Mr. Mosley
requested leave of court to file his amended complaint. Notably, although the State had filed
a motion to dismiss, it had not filed an answer to the complaint.
       Rule 15.01 of the Tennessee Rules of Civil Procedure provides, in relevant part:
              A party may amend the party‟s pleadings once as a matter of
              course at any time before a responsive pleading is served or, if
              the pleading is one to which no responsive pleading is permitted
              and the action has not been set for trial, the party may so amend
              it at any time within fifteen (15) days after it is served.
              Otherwise a party may amend the party‟s pleadings only by
              written consent of the adverse party or by leave of court; and
              leave shall be freely given when justice so requires.
Thus, a plaintiff must seek permission from the court to file an amended complaint only
when a responsive pleading has been filed. It is well-settled in Tennessee that a motion to
dismiss is not a responsive pleading. Mosby v. Colson, No. W2006-00490-COA-R3-CV,
2006 WL 2354763, at *12 (Tenn. Ct. App. Aug. 14, 2006) (citing Adams v. Carter County
Mem’l Hosp., 548 S.W.2d 307, 309 (Tenn. 1977); Lester v. Walker, 907 S.W.2d 812, 814
(Tenn. Ct. App. 1995); McBurney v. Aldrich, 816 S.W.2d 30, 32–33 (Tenn. Ct. App. 1991)).
Thus, a plaintiff who seeks to amend his complaint after a defendant has filed a motion to
dismiss, but has not filed an answer, may do so without leave of court. Id.

        Here, the State‟s motion to dismiss was not a responsive pleading. Mr. Mosley was,
therefore, entitled to amend his complaint without leave of court. Although Mr. Mosley was
represented by an attorney at this stage of the proceedings, he simply failed to take advantage
of his right to file an amended complaint. This Court functions as an “error-correcting
intermediate appellate court.” Alsip v. Johnson City Med. Ctr., No. E2004-00831-COA-R9-
CV, 2005 WL 1536192, at *7 (Tenn. Ct. App. June 30, 2005). Because Mr. Mosley was
entitled to file an amended complaint without leave of court, there is simply no error
committed by the Commission that this Court can correct.


                                              9
                                      Conclusion
      For the foregoing reasons, the decision of the Tennessee Claims Commission is
hereby affirmed. Costs of this appeal are taxed to the Appellant Joe Mosley. Because Mr.
Mosley is proceeding in forma pauperis in this appeal, execution may issue if necessary.




                                               _________________________________
                                               J. STEVEN STAFFORD, JUDGE




                                          10
