                       IN THE COURT OF APPEALS OF TENNESSEE
                                    AT JACKSON

                                                                      FILED
E. L. REID,                           )                                  July 23, 1999
                                      )
      Claimant/Appellant              )      Claims Commission No. 97-003-192
                                                                      Cecil Crowson, Jr.
                                      )                              Appellate Court Clerk
v.                                    )
                                      )      Appeal No. 02A01-9807-BC-00191
STATE OF TENNESSEE,                   )
                                      )
       Defendant/Appellee.            )



               APPEAL FROM THE TENNESSEE CLAIMS COMMISSION
                            WESTERN DIVISION



              THE HONORABLE MARTHA B. BRASFIELD, COMMISSIONER



For the Claimant/Appellant:           For the Respondent/Appellee:

E. L. Reid, Pro Se                    John Knox Walkup
Nashville, Tennessee                  Sohnia W. Hong
                                      Nashville, Tennessee



                                      AFFIRMED



                                      HOLLY KIRBY LILLARD, J.


CONCUR:

W. FRANK CRAWFORD, P.J., W.J.

ALAN E. HIGHERS, J.
                                              OPINION

        This is a prisoner property loss claim. The Tennessee Claims Commission dismissed the

claim. We affirm.

        Claimant/Appellant E. L. (Eldred) Reid (“Reid”) is an inmate; during the events relevant to

this appeal, he was housed at the Northwest Correctional Center (“NWCC”) in Tiptonville,

Tennessee. He has since been moved to a different correctional facility.

        On April 22, 1996, Reid left his cell to eat his evening meal at about 6:00 p.m. He claims

that his cell door was locked and that he was the only inmate with a key to the cell. His cellmate did

not , have a key. When Reid returned, commissary items, tobacco, and a lamp were missing.

        On May 15, 1996, Reid filed a notice of claim with the Division of Claims Administration

(“DCA”) alleging that his cell was burglarized due to the negligence of Tennessee Department of

Corrections (“TDOC”) officials. Reid requested relief in the amount of $110 for the loss of his

personal property, including $75 for the loss of the commissary items, and $35 for the loss of the

light and light bulb. Reid also sought $100 per day in damages for the loss of the use of his property.

In his notice of claim, Reid alleged that TDOC officials were solely responsible for the security of

his cell and possessed the only other key. He asserted that, but for the State’s negligence, his

personal property could not have been stolen. He also claims that the TDOC failed to investigate

the theft.

        On February 14, 1997, the DCA denied Reid’s claim. Reid then filed a notice of appeal with

the Claims Commission (“Commission”). In his pleadings before the Claims Commission, Reid

attached an affidavit in which he alleged that the correctional center’s cell doors have faulty locks

that can be picked by other inmates, and that the corrections staff fails to adequately watch cells

when inmates are not in their cells, and fails to obtain proper inmate identification before allowing

inmates into cells. He also alleged that the TDOC officials are retaliating against him for his activity

in the legal system by denying him the ability to make copies of legal documents and denying him

medical treatment. He claimed the loss of his clip-on lamp with its special light interfered with his

ability to litigate against the defendants.

        The State filed a motion for summary judgment on July 18, 1997. In its memorandum in

support of its motion for summary judgment, the State argued that it was entitled to summary

judgment because Reid failed to prove that the State was negligent in the care, custody and control

of his property. Although the State admitted that Reid provided several possible scenarios of how
thieves could have entered his cell, the State asserted that Reid failed to state with specificity an act

or omission showing that TDOC officials were responsible for the loss of his property. The State

attached an affidavit of Ricky Choate, a correctional officer who was supervising the inmates on

April 22, 1996. Choate noted that Reid’s cellmate spent the evening braiding another inmate’s hair.

He asserted that an investigation was not conducted to search for the missing items because they

were all commissary items, which “cannot be labeled or permanently engraved.”

        Reid filed a motion to deny the State’s motion for summary judgment and attached an

affidavit of his cellmate, Tony S. Maxwell. Maxwell stated that he had been braiding another

inmate’s hair when the evening meal was called. Maxwell went to his cell, had the officer unlock

the door since he did not have a key, washed his hands, and then left the cell. Maxwell stated that

he made sure that the door was locked by “pulling and shaking the door.” When Maxwell returned

from dinner, Reid approached Maxwell and asked if he had had anything stolen from the cell. None

of Maxwell’s personal property had been stolen. Maxwell asserted that no investigation was done,

but that Reid’s light could have been identified because it had a name and number scratched on the

base.

        On November 3, 1997, the Commission entered an order pursuant to Tennessee Code

Annotated § 9-8-403 transferring the case to the regular docket.1 The Commissioner determined


        1
                The relevant portions of 9-8-403 read:

                        (a) The commission shall maintain two (2) separate dockets. . . .
                (1) A regular docket similar to those maintained by courts of record. A court
        reporter shall be utilized at all hearings on claims on the regular docket and a record
        of such proceedings shall be made. These proceedings shall be conducted pursuant
        to rules of the Tennessee Rules of Civil Procedure where applicable and otherwise
        pursuant to rules and regulations promulgated by the commission. . . .
                (2) A small claims docket consisting of claims satisfying the monetary limit
        applicable to the general sessions court of Davidson County. No court reporter shall
        be utilized nor any record made of these proceedings. These proceedings shall be
        conducted pursuant to rules and regulations promulgated by the commission. If a
        claimant consents to having the claimant's claim proceed upon affidavits filed with
        the commission without a hearing, the state shall be deemed to have waived a hearing
        on the claim unless the state requests a hearing within sixty (60) days after the claim
        is filed with, or transferred to, the commission. No appeal may be taken from a
        commissioner's decision regarding claims appearing on the small claims docket.
        ****
                        (c) At the discretion of either party at any time prior to a hearing, a
        claim may be removed from the small claims docket to the regular docket. Once
        removed, the claim shall be treated like any other claim on the regular docket.
        ****
                        (h) Claims based on the negligent care, custody or control of personal
        property by persons in the legal custody of the state shall proceed on affidavits only,
        except where the commission determines that witnesses should be heard.

                                                   2
that “[i]t would be [a] waste of judicial time and economy to rule on the motion for summary

judgment and then issue a ruling on the merits of the case. The motions of the parties will be

considered as arguments to support that party’s position.” The Commissioner noted that an order

would then be issued based on the merits of the claim.

       On February 19, 1998, the Commissioner dismissed Reid’s claim. The Commissioner

determined that the request for $100 per day in damages was not a proper measure of damages and

therefore would not be considered. The Commissioner also concluded that Reid’s request for $110

in damages was without merit since “[t]he State is not an insurer of personal property.” The

Commissioner stated that “[t]he Commission has consistently held that property of an inmate which

is located in his cell is not under the care, custody or control of the TDOC officials, but is under the

care, custody or control of the Claimant.” The Commissioner noted that thieves could have entered

Reid’s cell in many ways without negligence by the TDOC, and concluded that Reid had failed to

prove negligence by TDOC.

        Reid then filed a motion to reconsider or, in the alternative, a notice of appeal as of right.

He conceded that there were many ways that his property could have been stolen, but asserted that

the only way his property could be removed from his cell was by TDOC officials’ gross negligence.

For the first time, Reid asserted that he was denied discovery, but pointed to no discovery requests

in the record. Reid also sought an en banc hearing before the entire Claims Commission.

        Reid’s motion was denied by the Commissioner. The Commissioner concluded that an en

banc hearing was not appropriate since Reid failed to allege that the ruling was divergent from the

ruling of another commissioner or otherwise needed to be reconciled with other authority.

        On April 22, 1998, Reid filed a notice of appeal to the appellate court as a poor person.

Attached to this motion was a document titled “Motion for Discovery Already Requested.” The

certification of service on the discovery request contains the date of February 21, 1997. The

document contains no file stamp by the Claims Commissioner.

        On May 19, 1998, Reid filed a motion for Rule 11 sanctions, alleging that the State had failed

to provide him copies of unpublished opinions cited in its memorandum in support of its motion for

summary judgment.




Tenn. Code Ann. § 9-8-403(a), (c), (h) (Supp. 1998).

                                                   3
       On July 6, 1998, the Commissioner determined that Reid was a poor person for purposes of

his appeal. On the same day, the Commissioner entered an order ruling that it did not have

jurisdiction to rule on Reid’s motion for Rule 11 sanctions because the claim was already on appeal

to this Court and because the motion was not timely filed. In the alternative, the Commissioner ruled

that if it did have jurisdiction, then the motion for sanctions should be denied. The Commissioner

found that the State had attached copies of the unreported cases to the motion it filed with the

Commission and that “[i]t is not credible that the Clerk and this Commissioner would receive their

copies of these unreported cases and the Claimant not receive his copies.” The claim was

subsequently transferred to this Court for appeal.

       On appeal, Reid presents twenty-three issues for our consideration.              These can be

consolidated into three issues for appeal: whether the Commissioner erroneously denied Reid’s

discovery request, whether the Commissioner erred in dismissing Reid’s claim, and whether the

Commissioner erred in ruling that it had no jurisdiction over Reid’s Rule 11 sanctions motion.

        This case is properly before this Court on direct appeal from the Commission and is

governed by the Tennessee Rules of Appellate Procedure. See Tenn. Code Ann. § 9-8-403(a)(1)

(Supp. 1998). Our review of the Commissioner's findings is de novo upon the record of the

commission with a presumption of the correctness of the commissioner's factual findings. The

decision of the commissioner will be affirmed, unless there is an error of law or the evidence

preponderates against the factual findings of the commissioner. See Tenn. R. App. P. 13(d); Sanders

v. State, 783 S.W.2d 948, 951 (Tenn. App. 1989).

       Reid argues that the Commissioner erred in not allowing him discovery of various matters,

such as rules and regulations for the TDOC and the Claims Commission, operating procedures of

the correctional facility, staffing requirements, reports or paperwork on his claim, grievances filed

for similar thefts, and hiring and training procedures for corrections officers. Reid attached a request

for discovery with his notice of appeal filed on April 22, 1998, after the Commissioner had ruled on

the merits of his claim. Although the certification of service on the discovery request showed the

date of February 21, 1997, the request was not file stamped by the Claims Commissioner. Reid

asserts that he sent the request through the prison mail system, but that there was a conspiracy

between the Commissioner and the State in which they “mess[ed] with his U.S. mail placed in the




                                                   4
prison mail.” The record shows that the Commission did not rule or make any findings on Reid’s

purported discovery request.

       The record contains nothing which would indicate that the discovery request was ever filed

with the Commission, such as a file stamped copy of the discovery request, an objection to the

discovery request by the State, or a motion by Reid seeking to compel discovery. Reid has provided

no evidence to this Court that the State or Commission interfered with the prison mail service. Nor

has Reid provided evidence that he ever placed the discovery request in the mail system, such as a

receipt or log book. There is a presumption at law that court officials have adequately performed

their duty. See Cox v. City of Bristol, 183 Tenn. 82, 191 S.W.2d 160, 164 (Tenn. 1945); Burns v.

Duncan, 23 Tenn. App. 374, 133 S.W.2d 1000 (1939). "In the absence of proof to the contrary, ...

it will be presumed that official acts or duties have been properly performed . . . ." Burns, 133

S.W.2d at 1006. There is a presumption that, if the discovery request had arrived at the Commission,

it would have been properly file stamped and entered into the record. Reid has made no showing

to rebut this presumption. This issue is without merit.

       Reid next argues that the Commissioner erred in dismissing his property loss claim. As in

the proceeding below, Reid argues that the State had the sole responsibility to hire and train

corrections officers, maintain control over all keys and electronic locks, provide security in the

facility, and create procedures to be used by security personnel. He denies having any control over

his property after he left the cell. He argues that he alleged specific acts or omissions by the State

in his complaint by alleging that, “The pod officer was left to secure the area including cells” and

then that “on returning from chow, I descovered [sic] al[sic] commissary . . . had been stolen from

the cell under the officer’s supervision/security.”

       In addition, Reid argues that the State’s failure to immediately investigate the crime was

negligent. He contends that there would have been a high likelihood of recovering the stolen

property had there been an immediate investigation, because the light had a serial number and Reid’s

prison identification number marked on the base and many of the commissary items were similarly

marked.

       Tennessee Code Annotated § 9-8-307(a)(1)(F) gives the Tennessee Claims Commission

jurisdiction over monetary claims against the State arising from the care, custody and control of

personal property where the State is negligent in its care, custody and control. See Tenn. Code Ann.


                                                  5
§ 9-8-307(a)(1)(F) (Supp. 1998). Absent negligence by the State, it is not liable for an inmate’s

personal property losses.

        The State cites several Tennessee Claims Commission cases for the proposition that, in the

absence of negligence, the State is not liable for claims involving theft of property by other inmates.

See Clarke v. State, Claim No. 105455 (Claims Comm’n Dec. 1, 1993) (holding that “property in

an inmate’s cell is not in the care, custody or control of the State and an inmate is responsible for his

own personal property, unless it is stored in the institution’s property room . . . [t]he State is not the

insurer of the personal property of inmates”); Wheeler v. State, Claim No. 96-222S (Claims

Comm’n Dec. 15, 1989) (holding that “[t]he State is not an insurer of property. The act of theft was

an independent, intervening cause over which the State had no control and, therefore, it cannot be

held liable.”); Holmes v. State, Claim No. 04-124 (Claims Comm’n Mar. 14, 1986) (dismissing

claim for stolen property for lack of jurisdiction where inmate failed to allege the loss of his property

was the result of negligence); Hopper v. State, Claim No. 51-461 (Claims Comm’n June 23, 1986)

(finding that personal property stolen from inmate’s cell was within the possession, custody and

control of inmate, not the defendant); Bays v. State, Claim No. 70260 (Claims Comm’n Dec. 3,

1986) (dismissing claim because inmate failed to allege any act of negligence by the State).

        Reid distinguishes Bays by noting that the cell door in that case consisted of bars through

which someone could reach in and take property, while the cell door in this case was solid, thus

preventing anyone from entering without a key. He distinguishes Hooper and Clarke because the

claimants in those cases failed to allege that a corrections officer was in control of the area in which

the theft occurred.

        Essentially, Reid attempts to argue the theory of res ipsa loquitur. Under the doctrine of res

ipsa loquitur, the plaintiff need not prove specific facts of negligence. See Summitt Hill Assocs. v.

Knoxville Utils. Bd., 667 S.W.2d 91, 96 (Tenn. App. 1983); Parker v. Warren, 503 S.W.2d 938, 942

(Tenn. App. 1973). The requirements for the application of res ipsa loquitur are: (1) there must be

a “thing” causing the injury; (2) the “thing” must be under the exclusive control of the defendant,

and (3) the “thing” must be shown to be of such a nature that injury does not ordinarily result from

its careful management. See Armes v. Hulett, 843 S.W.2d 427, 432 (Tenn. App. 1992). Plaintiff’s

evidence must be sufficient to enable the fact-finder to conclude that the injury was caused, more

probable than not, by the defendant’s negligence. See Stinnett v. Wright, 59 Tenn. App. 118, 126,


                                                    6
438 S.W.2d 357, 361 (1963); Roberts v. Ray, 45 Tenn. App. 280, 284, 322 S.W.2d 435, 437 (1958).

Thus, the res ipsa loquitur doctrine does not apply where the plaintiff’s injury could have reasonably

occurred without the defendant’s negligence. See Cockrum v. State, 843 S.W.2d 433, 438 (Tenn.

App. 1992); Brown v. University Nursing Home, Inc., 496 S.W.2d 503, 509 (Tenn. App. 1972).

        In this case, it is undisputed that the security of his cell and the possessions therein were not

under the exclusive control of the State. Sole control by the defendant is an “essential” element to

the res ipsa loquitur doctrine. See Towle v. Phillips, 180 Tenn. 1121, 172 S.W.2d 806, 808 (1943).

Reid possessed a key to the cell, and his cellmate had access to the cell and thus the State did not

have sole control over the cell and its contents. Reid cannot invoke the doctrine of res ipsa loquitur

by alleging that one of the parties with access to the cell was negligent, but that he was not negligent.

“[T]he proof in this case does not meet the standard for it to be a case in which the doctrine of res

ipsa loquitor [sic] would be applicable.” German v. Nichopoulos, 577 S.W.2d 197, 204 (Tenn. App.

1978). In the absence of proof that the State’s negligence caused Reid’s loss of personal property,

his claim must be dismissed.

        Reid also argues that the Commissioner erred in not granting his Rule 11 motion for

sanctions based on the State’s alleged failure to provide him with copies of unpublished opinions

used in its motion. Reid cites Rule 4 of the Tennessee Supreme Court Rules, stating that

unpublished opinions shall not be cited in court unless a copy is furnished to the court and adversary

counsel. See Rules S. Ct. Tenn. 4(5). As stated above, the Commissioner concluded that Reid’s

Rule 11 motion was filed after Reid filed his notice of appeal and that therefore the Commission did

not have jurisdiction to rule on the motion. In the alternative, the Commissioner noted that the

unpublished cases were attached to the State’s motion filed with the Commission and found that

Reid’s contention that he did not receive the cases was not credible. Reid asserts that his failure to

receive the cases prejudiced him. He argues that the Commissioner ruled on the sanctions issue

before he perfected his appeal, and that therefore the Commission had jurisdiction pursuant to

Tennessee Code Annotated 9-8-403(a)(1), directing that claims before the Commission be conducted

in accordance with the Tennessee Rules of Civil Procedure.

        This Court has held that “ the filing of the notice of appeal transfers jurisdiction to the Court

of Appeals.” Steele v. Wolfe Sales Co., 663 S.W.2d 799, 802 (Tenn. App. 1983); see also

Granderson v. Hicks, No. 02A01-9801-JV-00007, 1998 Tenn. App. LEXIS 849 (December 18,


                                                   7
1998). “Consequently, the trial court is deprived of jurisdiction to take further action on the case,

and an order entered thereafter by the lower court is of no effect.” Roberts v. Lowe, No.

03A01-9610-CC-00333, 1997 Tenn. App. LEXIS 256 (April 16, 1997). Reid filed his notice of

appeal on April 22, 1998. The motion for sanctions was filed on May 19, 1998. Therefore, the

Commission no longer had jurisdiction and correctly declined to rule on the motion.2

       In sum, we find that Reid has not shown that he made a discovery request at the trial level,

and that his argument that he was improperly denied discovery is therefore without merit. The

decision of the Claims Commissioner in dismissing Reid’s claim for the loss of his property is

affirmed. The Commissioner’s dismissal of Reid’s motion for Rule 11 sanctions based on lack of

jurisdiction is affirmed.

       The decision of the Commissioner is affirmed. Costs are taxed to Appellant, for which

execution may issue if necessary.




                                      HOLLY KIRBY LILLARD, J.

CONCUR:



W. FRANK CRAWFORD, P. J., W.S.



ALAN E. HIGHERS, J.




       2
                On July 6, 1998, the Commissioner determined that Reid could proceed as a poor
person. Although this ruling was entered after the notice of appeal, the trial court retains
jurisdiction to make this determination. See Watler v. Watler, 1994 WL 111023, at *2 (Mar. 30,
1994); Dep’t of Human Serv. v. Harris, No. 01A01-9203-CV-00109, 1992 WL 259288, at *2
(Tenn. App. Oct. 7, 1992) .

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