                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE

                 WILLIAM ALLEN, ET AL. v. WILLIAM LLOYD

                 Direct Appeal from the Circuit Court for Davidson County
                        No. 97C-1333    Thomas W. Brothers, Judge



                   No. M1999-01739-COA-R3-CV - Decided June 16, 2000


Nine prisoners brought a suit in forma pauperis against an employee of the Department of Correction
for interfering with Muslim congregational prayers. The trial court dismissed their complaint for
failure to comply with Tenn. Code. Ann. § 41-21-805 (requirement of affidavits detailing all
previous lawsuits filed by plaintiffs) and Tenn. Code. Ann. § 41-21-806 (requirement that
administrative remedies be exhausted before filing suit). We affirm on the basis of the plaintiffs’
failure to comply with Tenn. Code. Ann. § 41-21-805.

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

CANTRELL , P.J., M.S., delivered the opinion of the court, in which KOCH and CAIN , JJ. joined.

William Allen, Yusuf El-Amin, Kirk Freeman, Daniel Muhammad, and R. W. Farid Abd Al Rafi,
Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Terri L.
Bernal, Assistant Attorney General, Nashville, Tennessee, for the appellee, William Lloyd


                                           OPINION

                                    I. PRAYER AND PRISON

         William Allen was one of nine prisoners in Unit 6 of the Riverbend Maximum Security
Institution (RMSI) who followed the tenets of orthodox Islam. As an important part of the their
religious practice, the nine tried to gather together at least once a day for brief congregational
prayers.

        On March 1, 1997, they were praying in the multi-purpose room of the Unit 6 “B-Pod” when
William Lloyd, the Unit Manager, entered the room, and allegedly told them they could not use that
room for prayer. The proof showed that the room had been used by other prisoners for Christian
bible study, as well as for secular pursuits like practicing musical instruments, playing cards and
dominoes, and watching television, on a “first-come, first-served” basis. The record indicates that
the television was out for repair at the time of the incident.

        Mr. Allen and his fellow worshippers apparently chose another location for prayers after this
incident. On March 27, they had just completed their mid-day prayers at one end of the basketball
court in the exercise yard, when Mr. Lloyd sent another officer to tell them that the court was for
basketball only.

        On April 2, nine inmate grievances were filed against Mr. Lloyd, claiming that he had
interfered with the grievants’ rights to practice their religion. They asked that Mr. Lloyd be given
a psychological exam, counseling, and a written reprimand. They also asked that prison officials
designate a place for Muslim prayer. Bill Smith, the Chairman of the Grievance Board, combined
the grievances for a single hearing, pursuant to Department of Correction Policy #501.01(VI)(E)(3).

        On April 9, Mr. Smith issued a written response to the grievance: “Now that TV is back in
multi-purpose room, Warden Bell would prefer this area not be used for prayer. Warden feels that
basketball court is acceptable as long as (sic) doesn’t interfere with games.” According to Mr.
Allen’s affidavit, none of the grievants sought an appeal of the grievance process, because they felt
that they had achieved a favorable decision at this stage of the process.

       On April 24, 1997, however, Mr. Allen and the other eight inmates1 filed a pro se 42 U.S.C.
§1983 civil rights complaint against Mr. Lloyd, which named him in his individual capacity only.
The plaintiffs claimed that Mr. Lloyd had interfered with the free exercise of their religion, as
guaranteed by both the United States and Tennessee Constitutions. They asked for $5,000 each in
compensatory damages, and $10,000 each in punitive damages.

        On July 10, Mr. Allen personally served Mr. Lloyd with a set of Admissions related to the
lawsuit. Mr. Lloyd became angry, and threatened to have Mr. Allen locked up in segregation if he
ever approached him about anything again. Mr. Allen filed a grievance about this incident on the
same day, asking that a written reprimand be placed in Mr. Lloyd’s file, and that he be removed as
Unit Manager.

       On July 24, the grievance committee’s recommended response was “[b]oard agrees that Mr.
Lloyd should not have approached grievant in this manner. Board also feels that Mr. Waller
[Assistant Warden at RMSI] has addressed this issue with Mr. Lloyd.” The Chairman’s response



        1
                 Mr. Allen remained the lead plaintiff during the entire course of this lawsuit, but four
of the other plaintiffs discontinued their participation after they were transferred to other institutions
or released. The names and signatures of the five remaining plaintiffs are found on the Notice of
Appeal. The appellate brief was only signed by William Allen, leading the appellee to argue that in
accordance with the Rules of Appellate Procedure, “[a]ppellants Muhammed, Freeman, Al Rafi, and
El-Amin have presented no issues for review by this court.”

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was “[a]gree with Supervisor response. Mr. Waller has reviewed incident with Mr. Lloyd. Grievant
should contact Mr. Waller if problem persists.”

         On August 15, 1997, Mr. Allen filed a motion to amend his complaint, which was
subsequently granted. This complaint named Mr. Lloyd in both his official and individual capacities.
It recited the incident of July 10, as well as claims that Mr. Allen had been subjected to two petty
disciplinary write-ups, harassing cell searches and urine tests.

         Mr. Allen filed a Motion for Declaratory Judgment on October 16, 1998, asking the trial
court to declare that Mr. Lloyd’s acts “violated the plaintiffs’ rights under Tennessee law and under
the First, Eighth, and Fourteenth Amendments of the United States Constitution.” On the same day,
the defendant filed a Motion to Dismiss.

        On June 4, 1999, the trial court ruled on the pending motions, denying the plaintiffs’ motion
on the ground that under Tenn. Code. Ann. § 20-13-102, no state court has the jurisdiction to hear
declaratory judgment actions against the state or a state officer. The court dismissed the complaint
upon the defendant’s motion, citing the plaintiffs’ failure to comply with the mandatory requirements
of Tenn. Code. Ann. §§ 41-21-805 and 806. This appeal followed.

                                  II. DECLARATORY JUDGMENT

        Mr. Allen argues that the trial court erred in declining to grant his motion for declaratory
judgment. He contends that insofar as he was suing Mr. Lloyd in his individual capacity, Tenn.
Code. Ann. § 20-13-102 would not bar the court from granting him a declaratory judgment. But
even if, arguendo, we accept Mr. Allen’s argument, we still do not believe that the appellant is
entitled to such a judgment.

        Mr. Allen’s motion asks for a different form of relief than was requested in his complaint or
his amended complaint, and thus amounts to a further amendment of the complaint. At this stage
of the proceedings, a party may amend his pleadings “only by written consent of the adverse party
or by leave of court.” Rule 15, Tenn. R. Civ. P. No such consent or leave of the court was
requested.

        Further, the grant or denial of a declaratory judgment is within the discretion of the trial
court. Love v. Cave, 622 S.W.2d 52 (Tenn. Ct. App. 1981); East Sevier County Utility District v.
Wachovia Bank & Trust Co., 570 S.W.2d 850 (Tenn. 1978). The declaratory judgment statutes,
Tenn. Code. Ann. § 29-14-101, et seq., give the courts some guidance as to the manner in which to
exercise their discretion. Tenn. Code. Ann. § 29-14-109 states, “[t]he court may refuse to enter a
declaratory judgment or decree where such judgment or decree, if rendered or entertained, would not
terminate the uncertainty or controversy giving rise to the proceedings.” It does not appear to us that
the judgment requested would have had the desired effect, nor that the trial court abused its
discretion in refusing to grant it.



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                        III. EXHAUSTION OF ADMINISTRATIVE REMEDIES

        Appellee directs our attention to 42 U.S.C.A. § 1997e(a) (effective April 26, 1996) which
states “No action shall be brought with respect to prison conditions under section 1983 of this title,
or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.”

        Tenn. Code. Ann. § 41-21-806 creates a procedural requirement which was designed to
further the goal of making sure that an inmate who is filing in forma pauperis has pursued his
administrative remedies to a conclusion before enlisting the aid of the courts in resolving a problem:

                (a) An inmate who files a claim that is subject to review by the grievance
        committee established by the department shall file with the court an affidavit stating
        the date that the grievance was filed and the date the final decision was received by
        the inmate with a copy of the final decision from the grievance committee.

       Mr. Allen did not file a Tenn. Code. Ann. § 41-21-806 affidavit in the trial court. Instead,
he appended to his brief a copy of an affidavit, dated August 17, 1999, that would have met the
requirements of the statute if it had been properly filed. For the purposes of this discussion,
however, we will ignore this lapse, and examine instead the question of exhaustion of administrative
remedies.

        Mr. Allen argues that he should not be required to exhaust his administrative remedies,
because those remedies are irrelevant to the relief he seeks. He asserts that the committee’s response
to his first grievance put an end to Mr. Lloyd’s attempts to interfere with the practice of Muslim
prayer. He was particularly gratified by the “diplomatic” language of the response, which expressed
the warden’s preference that the multi-purpose room not be used for prayer, but did not forbid such
use by the appellants on a first-come, first served basis.

        Appellant also declares himself satisfied that the response to his second grievance put a stop
to Mr. Lloyd’s threats and attempts at intimidation for exercising his First Amendment right to seek
redress in the courts. He argues that he is not seeking correction of prison conditions, but damages
for Mr. Lloyd’s past actions. While it is questionable what quantum of damages can be proven for
a single incident of interrupted prayer or for purely verbal threats, Mr. Allen’s argument is well-
taken, and would perhaps have enabled him to proceed to a trial of that question, if it were not for
his failure to comply with the requirements of Tenn. Code. Ann. § 41-21-805.

                                 IV. TENN. CODE. ANN . § 41-21-805

       The Legislature enacted Tenn. Code. Ann. § 41-21-801, et seq. in 1996 to address the
problems that arise when state courts are confronted by a flood of taxpayer-funded inmate lawsuits.
Tenn. Code. Ann. § 41-21-805 imposes a duty upon inmates who file claims in forma pauperis to
submit affidavits documenting in detail their prior history of litigation, before a trial court can rule


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on their current claims. Federal statutes impose similar restrictions in federal courts on proceedings
in forma pauperis. See 28 U.S.C. § 1915.

        No such affidavits were filed in this case. After the defendant filed a motion to dismiss based
upon non-compliance with Tenn. Code. Ann. § 41-21-805, the five remaining plaintiffs requested
that the Department of Correction withdraw $24 from each of their personal accounts, and mail the
funds to the Clerk of the Davidson County Courts. They contemporaneously filed a “Notice to the
Court of Payment of Filing Fees to the Clerk.” The purpose of this move was to waive the right to
proceed in forma pauperis and thus to avoid the necessity of filing Tenn. Code. Ann. § 41-21-805
affidavits.

       We assume that the gesture of payment by the plaintiffs was actuated in part by a desire to
demonstrate the importance they attach to the free exercise of the their religious rights. While this
is admirable, there is no indication in the record that the plaintiffs made any inquiry to determine
whether payment of $120 into the court would be adequate to cover those costs that are normally
borne by the state when a suit is filed in forma pauperis.

       The courts of this state normally require the filing of a bond in an amount sufficient to
guarantee the payment of costs before a suit can be filed. A pro se litigant would have to pay a $500
cash bond into the court as well as a $37.50 filing fee to file a civil complaint in the Davidson
County Circuit Court. We note that on December 20, 1999, the appellants each filed in this court
a “Notice of Claim of Exemption from Garnishment” presumably to prevent us from taxing the full
amount of court costs from their personal property.

        It appears to us that Mr. Allen and his co-plaintiffs still must satisfy the obligations imposed
on inmates seeking to proceed in forma pauperis. Since they did not file the affidavits required of
indigent inmate plaintiffs by Tenn. Code. Ann. § 41-21-805, their complaint was properly dismissed.
Such dismissal is without prejudice to the right to file another lawsuit based upon the same cause
of action. See Eddie Williams v. Warden Ricky Bell, No. M1999-02124-COA-R3-CV, filed
Nashville(Tenn. Ct. App., May 25, 2000).

                                                  V.

       The order of the trial court is affirmed. Remand this cause to the Circuit Court of Davidson
County for further proceedings consistent with this opinion. Tax the costs on appeal to the
appellants, William Allen, Yusuf El-Amin, Kirk Freeman, Daniel Muhammad and R.W. Farid Abd
Al Rafi.




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