                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                          Assigned on Briefs November 29, 2007

                VERDIS CHAMBERS v. TENNESSEE BOARD OF
                     PROBATION AND PAROLE, ET AL.

                    Appeal from the Chancery Court for Davidson County
                     No. 0622641     Claudia C. Bonnyman, Chancellor



                   No. M2007-00042-COA-R3-CV - Filed January 24, 2008


An inmate appeals the dismissal of his lawsuit under Tenn. Code Ann. § 41-21-807(b) for failure to
make partial payment of the filing fee and argues the trial court abused its discretion in failing to
specify the amount of the partial payment due. The trial court gave the inmate an opportunity to
make the filing fee payment prior to dismissal and was not required to specify the amount due since
the statute provided the formula to determine the amount of the partial payment due. We affirm the
judgment of the trial court.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR., and
JERRY L. SMITH , joined.

Verdis Chambers, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Kellena
Baker, Assistant Attorney General, for the appellee, Tennessee Board of Probation and Parole.

                                            OPINION

        On September 14, 2006 Verdis Chambers filed a petition for a writ of certiorari seeking
review of the Tennessee Board of Probation and Parole’s (“Board”) decision to deny him early
release on parole. Mr. Chambers simultaneously filed a Motion to Proceed in forma pauperis, an
Affidavit of Poverty, and an Inmate Trust Fund Balance Certification. The Balance Certification
showed a current cash balance as of August 22, 2006 of $73.59 and an average account balance for
the previous six (6) months of $76.83.
Tennessee Code Annotated § 41-21-807, governing fees for inmate suits, provides as follows:

(a) An inmate seeking to bring a civil action or appeal a judgment in a civil action or
proceeding without prepayment of fees or security therefor, in addition to filing the
affidavit required by § 41-21-805, shall submit a certified copy of the trust fund
account statement, or the institutional equivalent, for the inmate for the six-month
period immediately preceding the filing of the complaint or notice of appeal,
obtained from the appropriate official of each facility at which the inmate is or was
confined.

(b)(1) 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

(2) After payment of the initial partial filing fee, the inmate shall be required to make
monthly payments of twenty percent (20%) of the preceding month’s income
credited to the inmate’s account. The agency having custody of the inmate shall
forward payments from the inmate’s account to the clerk of the court each time the
amount in the account exceeds ten dollars ($10.00) until the filing fees are paid.

(3) In no event shall the filing fee collected exceed the amount of fees permitted by
statute for the commencement of a civil action or an appeal of a civil action or
criminal judgment.

(4) In no event shall an inmate be prohibited from bringing a civil action or appealing
a civil or criminal judgment for the reason that the inmate has no assets and no means
by which to pay the initial partial filing fee.

(c) In no event shall an inmate bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the inmate has, on three (3) or more prior
occasions, while incarcerated or detained in any facility, brought an action or appeal
in a court of this state or the United States that was dismissed on the grounds that it
was frivolous, malicious, or failed to state a claim upon which relief may be granted,
unless the inmate is under imminent danger of serious physical injury.




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       On September 29, 2006, the trial court issued an order stating that it would dismiss Mr.
Chambers’ case unless he made a partial payment of the filing fee required by Tenn. Code Ann. §
41-21-807 within 30 days. The total filing fee was specified in the order to be $192.50. Mr.
Chambers responded that he was unable to pay the fee and made no payments toward the fee at all.
Mr. Chambers offered no explanation. On November 21, 2006, the trial court dismissed Mr.
Chambers’ action for failure to comply with Tenn. Code Ann. § 41-21-807 since he had paid no
amount toward the initial partial filing fee. Mr. Chambers filed a motion to alter or amend which
was denied by the court.

        Mr. Chambers appeals claiming that the trial court abused its discretion in failing to specify
the amount of partial payment needed from Mr. Chambers to proceed since he did not have the filing
fee of $192.50 in his account.

        The statute is clear that Mr. Chambers is required to make as an initial partial payment 20%
of the greater of the average of either the deposits or balance in the inmate’s account for the six (6)
month period before filing the complaint. Mr. Chambers failed to do so and offered no explanation
as to why he did not make the initial partial payment required by Tenn. Code Ann. § 41-21-807(b).
He made no payment at all. The trial court was under no obligation to specify the initial partial
payment Mr. Chambers was required to make in order to proceed. Failure to comply with the
requirement of Tenn. Code Ann. § 41-21-807 authorizes a trial court to dismiss the action. Wallace
v. Wallace, M2005-01916-COA-R3-CV, 2006 WL 3246104, at *3 (Tenn. Ct. App. Nov. 8, 2006)
(no Tenn. R. App. P. 11 application filed); Freeman v. Tennessee Department of Probation and
Parole, M2002-00958-COA-R3-CV, 2003 WL 1798080, at *2 (Tenn. Ct. App. April 7, 2003) (no
Tenn. R. App. P. 11 application filed).

        Mr. Chambers’ brief makes vague reference to some unspecified constitutional argument by
referring to Jones v. Bock, 127 S. Ct. 910 (2007). Jones v. Bock has no effect in the matter pending
before us as it simply held that while exhaustion is required under the Prison Litigation Reform Act
of 1995, 42 U.S.C.A. § 1997e(a), for inmate lawsuits, it is an affirmative defense to be raised by the
respondent and the Sixth Circuit may not by rule require an inmate to plead exhaustion before the
matter may proceed. 127 S. Ct. at 919-21.

        In this case, Mr. Verdis had funds in his account to pay the partial statutory fee, but failed
to make any payment whatsoever. The trial court’s dismissal is affirmed. Costs of appeal are taxed
to the appellant, Mr. Verdis Chambers, for which execution may issue if necessary.



                                                       ____________________________________
                                                       PATRICIA J. COTTRELL, JUDGE




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