                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                        Submitted On Briefs November 18, 2009

               JOE HENRY MOORE v. STATE OF TENNESSEE

               Direct Appeal from the Tennessee Claims Commission
              No. 20-101-047   Nancy C. Miller Herron, Commissioner




              No. W2008-02699-COA-R3-CV - Filed December 23, 2009


This case arises out of a prisoner’s claims for medical malpractice, negligence, and violation
of his right to be free from cruel and unusual punishment under the state and federal
constitutions. The claims commission, in two separate orders, wholly resolved the prisoner’s
claims in favor of the State of Tennessee. Because the prisoner has not argued or otherwise
provided any basis for this Court to determine the alleged errors in the judgment of the claims
commission, we affirm.

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

D AVID R. F ARMER, J. , delivered the opinion of the Court, in which H OLLY M. K IRBY, J.,and
J. S TEVEN S TAFFORD, J., joined.

Joe Henry Moore, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Arthur Crownover, II, Senior
Counsel, for the appellee, State of Tennessee.


                                         OPINION

       Joe Moore (“Moore”), a long-time inmate at the West Tennessee State Penitentiary
(“WTSP”), initiated these proceedings when he filed claims for medical malpractice,
negligence, and violation of his right to be free from cruel and unusual punishment under the
state and federal constitutions with the Tennessee Claims Commission (“Commission”).1 In
his complaint and amended complaint, Moore explained that doctors diagnosed him with
degenerative arthritis in his right hip in the late 1980's. He alleged that he sought treatment
for his condition throughout the 1990's without success because a physician’s assistant
employed by the State refused to recommend surgery. Moore further alleged that WTSP’s
negligence in not providing him with proper medical treatment allowed his condition to
deteriorate to the point his hip could not be effectively repaired. He claimed that, as a result
of the alleged negligence, he would never be able to walk or stand for long periods of time,
jeopardizing his ability to earn a living following his release and diminishing his quality of
life.

        Moore received surgery on his hip in December of 1999 but alleged that he was
thereafter deprived of mandatory rehabilitative therapy that his physician had approved.
Moore contended that his inability to complete a meaningful portion of the recommended
rehabilitation prevented him from returning to the standard of living he was accustomed to
before the surgery and caused him to lose full and total use of his body. Moore further
alleged that the State deprived him of proper footwear and medication.

        The State filed a motion for partial judgment on the pleadings with the Commission
arguing that Moore’s claims for negligence and medical malpractice were barred by the
applicable statute of limitations. The State further argued that the Commission did not have
jurisdiction to consider Moore’s constitutional claims. The Commission granted the State’s
motion in part. The Commission agreed that the statute of limitations for negligence and
medical malpractice barred claims arising out of the alleged improper diagnosis and improper
pre-surgical treatment of Moore’s condition. The Commission also found that it lacked
jurisdiction over the prisoner’s constitutional claims. The Commission, however, concluded
that it was not clear that Moore’s claims for medical malpractice based on post-surgical
treatment did not arise within one year of the filing of his claim. The Commission later
denied Moore’s request for en banc review of its decision.

        More than two years later, the State filed a motion to dismiss Moore’s remaining
medical malpractice claims. The motion explained that Moore admitted he did not have an
expert to testify that state employees deviated from the acceptable standard of care. Moore
submitted in defense of his claim that the alleged malpractice was within the common
knowledge of a layman. The Commission agreed with the State’s position that Moore could
not establish an essential element of his claim–deviation from the applicable standard of care.
The Commission further noted that Moore could not prevail even if his claims were in


        1
        It appears, although it is not certain, that Moore currently resides at Forgiveness House in Memphis,
Tennessee.

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negligence because he could not establish the essential elements of injury and causation
absent expert testimony. The Commission concluded that Moore had ample opportunity to
procure an expert to testify on his behalf, which he failed to do. As a result, the Commission
dismissed his remaining claims. Moore timely filed a notice of appeal.2

       On appeal, Moore has failed to offer any argument on why the Commission reached
an erroneous decision on the State’s motions. Moore’s brief contains little more on the
substance of his argument than a single conclusory allegation that agents of the State
improperly diagnosed and treated his hip condition–this despite the fact that this Court has
twice extended the deadline for the filing of Moore’s brief. Under the circumstances, we
consider Moore’s arguments waived. See Tenn. R. App. P. 27(a)(7) (requiring argument
supported by authority); Tenn. Ct. App. R. 6(a), (b) (requiring citation to determinative facts
and alleged errors); Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000) (citations
omitted) (explaining that appellate courts will not consider issues not raised or properly
argued in the appellant’s brief). We recognize that this Court has discretion to suspend the
operation of the aforecited rules for good cause. Tenn. R. App. P. 2; Tenn. Ct. App. R. 1(a).
We further recognize that Moore is a pro se claimant. We nevertheless find insufficient
reason to formulate our own arguments on Moore’s behalf.

       Justice Koch, prior to his appointment to the Tennessee Supreme Court, highlighted
the arguments for and against the relaxation of court rules in cases involving pro se litigants
in Discover Bank v. McCullough, No. M2006-01272-COA-R3-CV, 2008 WL 245976, at *3-
4 (Tenn. Ct. App. Jan. 29, 2008)(no perm. app. filed). He wrote:

               Self-represented litigants are entitled to fair and equal treatment by the
        courts. In Tennessee, trial courts are expected to appreciate and be
        understanding of the difficulties encountered by a party who is embarking into
        the maze of the judicial process with no experience or formal training. Thus,
        courts are expected to take into account that many self-represented litigants
        have no legal training and are unfamiliar with judicial procedures.


        2
          The appellate court clerk’s office did not receive Moore’s notice of appeal until late 2008. It
nevertheless appears that Moore has demonstrated pursuant to Tennessee Rule of Appellant Procedure 20(g)
that he delivered his notice of appeal to the appropriate individual at his correctional facility within the time
fixed for filing under Tennessee Rule of Appellate Procedure 4(a). The record contains a notice of appeal
signed by Moore and dated March 26, 2006; the trial court entered final judgment on March 16, 2006. The
certificate of service states that a copy of the notice was mailed via United States mail to the Commission
and opposing counsel with notice being “placed in the hand[s] of prison officials on [the] same date.”
Although it is not entirely clear what happened to Moore’s notice of appeal following its delivery to prison
officials, we conclude that he has met his burden under Rule 20(g) in absence of any argument to the contrary
from opposing counsel. Moore’s appeal is appropriately before this Court.

                                                      -3-
                 Accordingly, Tennessee’s courts should give self-represented litigants
          who have no legal training a certain amount of leeway in drafting their
          pleadings, motions, and other papers. They should measure the papers
          prepared by self-represented litigants using standards that are less stringent
          than those applied to papers prepared by lawyers.

                  Courts, however, must also be mindful of the boundary between
          fairness to a self-represented litigant and unfairness to that litigant’s adversary.
          Courts may not excuse self-represented litigants from complying with the same
          substantive and procedural rules that represented parties are expected to
          observe. . . . Simply stated, “[a]lthough ... [self-represented] parties are
          afforded a liberal interpretation of their pleadings and briefs before our courts,
          this liberal construction cannot create rights where none exist.”

                    The line between appropriate indulgence of a self-represented litigant’s
       shortcomings and unfairness to the self-represented litigant's adversary,
       although fine, must be maintained. Accordingly, the courts should not permit
       self-represented litigants to shift the burden of litigating their case to the courts
       or to their adversaries.                           While courts should liberally construe a
       self-representedlitigant’spaperstogiveeffecttotheirsubstanceratherthantheirform,theyshouldnotmanufactureorcreateaclaim,defense,or
argument that cannot reasonably be found in the document. Absent some basis from which
a court can reasonably construe the pleading in such a manner, a liberal construction alone
will not create a pleading, defense, or claim.

                  Courts must maintain their ethical equilibrium by managing the tension
          that exists between smoothing bumps in the litigation process for a
          self-represented litigant and their responsibility to remain impartial. Where a
          trial court strays beyond liberal construction into the realm of creating and
          manufacturing claims and defenses that simply do not exist in the
          self-represented litigant’s pleadings, it has improperly abdicated its role as an
          impartial, neutral arbiter and instead has become an advocate for the
          self-represented litigant.

Discover Bank, 2008 WL 245976, at *3-4 (footnote omitted) (citations omitted). These
principles similarly guide the construction of papers filed in the appellate courts. See In re
Estate of Chandler, No. E2000-03055-COA-R3-CV, 2001 WL 1448495, at *2-4 (Tenn. Ct.
App. Nov. 15, 2001). Finding reversible error in the present case would require this Court
to go beyond its duty of liberal construction and into the realm of advocacy. We therefore
affirm the decision of the Commission dismissing Moore’s claims.



                                                                  -4-
                                       Conclusion

      For the foregoing reasons, we affirm the judgment of the Tennessee Claims
Commission. Costs of this appeal are taxed to the appellant, Joe Moore, for which execution
may issue if necessary.




                                                  _________________________________
                                                  DAVID R. FARMER, JUDGE




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