                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                Assigned on Briefs April 26, 2012

               JAMES R. OLIPHANT v. THE STATE OF TENNESSEE

                    Appeal from the Chancery Court for Davidson County
                      No. 11-1007-I   Claudia Bonnyman, Chancellor


                     No. M2011-02132-COA-R3-CV - Filed May 23, 2012


        This common law writ of certiorari was filed by an inmate, who asserted that the
parole board violated his rights by returning him to jail for violating his parole. The trial
court dismissed the case without prejudice because the inmate failed to pay any portion of
the initial filing fee or to issue a summons to the parole board. Affirmed.

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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.

James R. Oliphant, Tiptonville, Tennessee, for the appellant, pro se.

James Lee Pope, Assistant Attorney General, for appellee, State of Tennessee.

                                   MEMORANDUM OPINION 1

       On July 26, 2011, Petitioner/Appellant James R. Oliphant filed a pro se Petition for
Common Law Writ of Certiorari in Davidson County Chancery Court. The petition alleges
that the Respondent/Appellee Tennessee Board of Probation and Paroles (“the Board”)

       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee 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       be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited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.
violated Mr. Oliphant’s due process rights by revoking his parole. Specifically, the petition
alleged that: (1) Mr. Oliphant was not given an opportunity to be heard within a reasonable
time after being booked and taken into custody pending a final decision of the Board; (2)
the Board improperly relied on hearsay; (3) the Board did not disclose evidence properly;
(4) the Board did not allow Mr. Oliphant to present witnesses in his defense; and (5) the
Board acted arbitrarily and illegally in accepting the testimony of a police officer that
domestic violence charges were still pending against Mr. Oliphant without documentary
evidence.

        According to his petition, Mr. Oliphant was served with a parole violation warrant
on August 20, 2010. Mr. Oliphant was charged with domestic violence, alcohol use, and
the failure to pay required fees, all in violation of the terms of his parole. He was arrested
and transferred to the West Tennessee State Penitentiary on September 2, 2010, where he
was given a Notice of Charges and a document titled “Explanation of Rights.”

        Mr. Oliphant waived his preliminary hearing and a revocation hearing was scheduled
for November 27, 2010 before a hearing officer. The hearing officer directed the
Institutional Probation and Parole Officer (“IPPO”) to assist Mr. Oliphant in subpoenaing
witnesses.

       The hearing officer conducted a final revocation hearing on March 4, 2011. Mr.
Oliphant’s parole was revoked. On May 3, 2011, Mr. Oliphant appealed the decision to
revoke his parole to the Board. On May 24, 2011, Mr. Oliphant’s appeal was denied by the
Board.

        Mr. Oliphant thereafter timely filed the petition at issue in the Davidson County
Chancery Court. However, Mr. Oliphant failed to serve the Board with a copy of the petition
or a summons.2 In addition, Mr. Oliphant failed to comply with the requirements of
Tennessee Code Annotated Sections 41-21-801 et. seq., including failure to file an inmate
affidavit pursuant to Tennessee Code Annotated Section 41-21-805 and failure to make
partial payment of the initial filing fee as required by Tennessee Code Annotated Section 41-
21-807. Accordingly, the trial court entered an order on August 17, 2011, directing Mr.
Oliphant to comply with the above requirements within thirty (30) days. The order noted that
the failure to comply would result in Mr. Oliphant’s case being dismissed.

      Mr. Oliphant subsequently filed a uniform affidavit of indigency, a Tennessee Code
Annotated Section 41-21-805 & 806 inmate affidavit, and an Inmate Trust Certification
Balance. However, nothing in the record reflects that he made partial payment on the filing

       2
           The Board did not appear at trial, nor did it appear or file a brief on appeal.

                                                       -2-
fee or issued summons to the Board. Accordingly, the trial court dismissed Mr. Oliphant’s
case without prejudice on September 19, 2011. Mr. Oliphant timely appealed, arguing the
following issues, which are restated from his brief:

                 1.       Whether the trial court erred in summarily dismissing the
                          petition for a common law writ of certiorari on the
                          ground that Mr. Oliphant had not paid any amount
                          toward the initial filing fee?
                 2.       Whether the trial court erred in summarily dismissing the
                          petition for a common law writ of certiorari on the
                          ground that Mr. Oliphant had not filed any summons for
                          issuance?3

       Mr. Oliphant first argues that the trial court erred in dismissing his petition for failure
to prosecute based on his failure to pay a portion of the initial filing fee. “Because decisions
to dismiss for failure to prosecute are discretionary, White v. College Motors, 370 S.W.2d
476, 477 (Tenn. 1963), this Court will second-guess a trial court only when it has acted
unreasonably, arbitrarily, or unconscionably.” Hodges v. Tenn. Attorney Gen., 43 S.W.3d
918, 921 (Tenn. Ct. App. 2000).

        A litigant commencing a civil action in a Tennessee court must file a cost bond and
pay an initial filing fee. Litigants who are indigent may be excused from filing a cost bond
by filing an affidavit stating that they are justly entitled to legal or equitable relief but are
unable to bear the expense of the litigation because of their poverty. Tenn. Code Ann. §
20-12-127. Upon the filing of an appropriate affidavit of indigency, the costs are held in
abeyance until the end of the litigation. See Tenn. Sup. Ct. R. 29 (stating that “any civil
action may be commenced by a resident of this state without giving security as required by
law for costs and without payment of litigation taxes due by filing the oath of poverty set out
in the statute and by filing an affidavit of indigency as prescribed by court rule”).



        3
           In his Statement of the Issues, Mr. Oliphant argues that the requirements that he pay a portion of
the filing fee and serve a summons on the Board violate his “constitutional rights to due process and equal
protection of the law pursuant to the Fifth and Fourteenth Amendments of the United States Constitution.”
We decline to consider the constitutionality of the above requirements. Mr. Oliphant makes no argument in
the body of his brief that these requirements are unconstitutional, nor does he cite any authority questioning
their constitutionality. Instead, Mr. Oliphant only argues that the trial court applied the requirements wrongly.
In addition, nothing in the record indicates that Mr. Oliphant sent notice to the Tennessee Attorney General
that he was challenging the constitutionality of these requirements. It is well-settled that “[a] party who
wishes to challenge the constitutionality of a statute must provide notice to the Attorney General in the trial
court of the party's challenge.” Tenn. Code Ann. § 29-14-107(b); Tenn. R. Civ. P. 24.04.

                                                      -3-
       However, indigent persons are not excused from paying the initial filing fees required
by Tennessee Code Annotated Section 8-21-401(a). In 1996, The Tennessee General
Assembly enacted Tennessee Code Annotated Section 41-21-807 to provide a procedure for
collecting the required filing fee from inmates filing civil suits in state court.

       Tennessee Code Annotated Section 41-21-807(a) requires inmates to file certified
copies of their trust fund account statements for the six months immediately preceding the
filing of the petition. In addition, Tennessee Code Annotated Section 41-21-807(b)(1)
provides:

              If an inmate brings a civil action or files an appeal in forma
              pauperis, the inmate shall be required to pay the full amount of
              a filing fee. The court shall assess and, when funds exist, collect
              as a partial payment of any court fees required by law, an initial
              partial filing fee of twenty percent (20%) of the greater of the
              average monthly:

              (A) Deposits to the inmate's account; or
              (B) Balance in the inmate's account for the six-month period
              immediately preceding the filing of the complaint or notice of
              appeal.

         Mr. Oliphant’s Trust Fund Certification balance shows that, as of July 1, 2011, Mr.
Oliphant had $0.00 in his Trust Fund Account and that the average balance for the previous
six (6) months was $7.43. Accordingly, Mr. Oliphant was required to pay $1.49 toward his
initial filing fee. However, Mr. Oliphant failed to pay that amount, and the trial court ordered
him to make a partial payment on the initial filing fee by September 17, 2011. As of August
29, 2011, Mr. Oliphant still had $0.00 in his trust account, but the average account balance
for the previous six (6) months was $11.04. Therefore, in the thirty days after Mr. Oliphant
was ordered by the court to pay the costs of this litigation, he was required to pay
approximately $2.21 to the court as partial payment toward the initial filing fee.
Accordingly, Mr. Oliphant had funds to make a partial payment on his filing fee, as required
by Tennessee Code Annotated Section 41-21-807. Mr. Oliphant failed to comply with that
requirement. This Court, in Freeman v. Tennessee Dept. of Probation and Parole, No.
M2002-00958-COA-R3CV, 2003 WL 1798080 (Tenn. Ct. App. April 7, 2003), previously
held that a trial court may properly dismiss a civil action filed by a pro se inmate when the
inmate fails to pay a portion of the initial filing fee as ordered by the court. Id. at *3. This
Court stated:

              [The inmate] failed to comply with the trial court's November

                                              -4-
                21, 2001 order in a timely manner and failed to present either to
                the trial court or this court any justification for his failure to do
                so. He is, therefore, the author of his own misfortune. Appellate
                courts need not grant relief to persons who failed to take
                whatever action was reasonably available to them to prevent or
                nullify the harmful effect of an adverse decision. Tenn. R. App.
                P. 36(a)

Id. at *2 (footnote omitted). Mr. Oliphant’s only justification to this Court for his failure to
pay a portion of the initial filing fee was that his trust account was depleted due to postage
costs associated with this action. The record shows that Mr. Oliphant authorized $5.08 to
be deducted from his trust account for postage to mail his petition to the Davidson County
Court clerk on July 20, 2011. Even considering this deduction from his previous six months’
balance, however, Mr. Oliphant had $2.35, enough funds to pay the required 20% of the
balance in his inmate account as an initial partial filing fee. Mr. Oliphant also attached a
document to his brief evidencing that he authorized another $5.08 to be deducted from his
trust account on September 20, 2011 for postage. However, “[i]t is settled law that
documents merely attached to appellate briefs cannot be considered by this Court because
they are not properly part of the certified record.” Myers v. State, No.
M2004–02411–CCA–MR3–PC, 2005 WL 1541870, at *5 n.7 (Tenn. Crim. App. June 29,
2005) (citing State v. Matthews, 805 S.W.2d 776, 783–84 (Tenn. Crim. App. 1990)). Even
if this Court were to consider the document, the form shows that Mr. Oliphant authorized
the withdrawal of the funds one day after the trial court dismissed the action, rather than
within the thirty-day time-frame given by the court to pay a portion of the filing fee. Further,
this document does not support Mr. Oliphant’s argument that he was unable to pay the
required filing fee. Instead, it shows that close to the time the trial court dismissed Mr.
Oliphant’s petition, he had at least $5.08 in his trust account, more than enough to cover his
partial payment on the initial filing fee.

         Based on the foregoing, we discern no abuse of discretion in the trial court’s
judgment dismissing Mr. Oliphant’s petition based on his failure to pay a portion of the
initial filing fee in a timely manner. Accordingly, we need not reach the issue of whether the
trial court erred in dismissing the petition based on Mr. Oliphant’s failure to issue a
summons to the Board.4 The judgment of the Davidson County Chancery Court is affirmed


        4
        We note that nothing in the record indicates that Mr. Oliphant ever obtained proper service on the
Board. Rule 4.01 of the Tennessee Rules of Civil Procedure provides, in pertinent part:

                (1) Upon the filing of the complaint the clerk of the court wherein the
                                                                                            (continued...)

                                                   -5-
and this cause is remanded to the trial court for collection of court costs. Costs of this appeal
are assessed to Appellant James R. Oliphant. Because Appellant is proceeding as a pauper
in this appeal, execution may issue against Mr. Oliphant for costs of the appeal if necessary.




                                                              _________________________________
                                                              J. STEVEN STAFFORD, JUDGE




        4
            (...continued)
                    complaint is filed shall forthwith issue the required summons and cause it,
                    with necessary copies of the complaint and summons, to be delivered for
                    service to any person authorized to serve process. This person shall serve
                    the summons, and the return indorsed thereon shall be proof of the time and
                    manner of service. A summons may be issued for service in any county
                    against any defendant, and separate or additional summonses may be issued
                    against any defendant upon request of plaintiff. Nothing in this rule shall
                    affect existing laws with respect to venue.

                                                        ***

                   (3) If a plaintiff or counsel for plaintiff (including third-party plaintiffs)
                   intentionally causes delay of prompt issuance of a summons or prompt
                   service of a summons, filing of the complaint (or third-party complaint) is
                   ineffective.

Accordingly, timely issuance of a summons is a mandatory requirement. At the time the case was dismissed,
however, Mr. Oliphant had not issued or served a summons on the Board. To explain this failure, Mr.
Oliphant attaches to his brief documents showing that he attempted to mail a waiver of summons form to the
Board on September 19, 2011 and to pay for the postage on September 20, 2011. However, as discussed
supra, documents attached to briefs are not properly considered by this Court and this action was taken after
the trial court had dismissed Mr. Oliphant’s petition.

                                                        -6-
