                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                           Assigned on Briefs December 11, 2001

 BILLY LATTIMER v. TENNESSEE DEPARTMENT OF CORRECTION,
                          ET AL.

                    Appeal from the Chancery Court for Davidson County
                        No. 98-489-II   Carol McCoy, Chancellor



                     No. M2000-03126-COA-R3-CV - Filed April 17, 2002


A prisoner filed a lawsuit against the Department of Correction and some of its employees, claiming
that the employees had confiscated and destroyed his photo albums, and that their actions amounted
to an unconstitutional deprivation of his due process rights. The trial court dismissed the suit
without prejudice, ruling that the prisoner had only stated a claim for ordinary negligence against the
State, and thus that the only forum available to him was the Tennessee Claims Commission. We
reverse in part and affirm in part.

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

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and WILLIAM B. CAIN , joined.

Billy Lattimer, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General & Reporter; Michael Moore, Solicitor General; and Kimberly
J. Dean, Deputy Attorney General, for the appellee, Tennessee Department of Correction, et al.

                                             OPINION

                            I. A PHOTO COLLECTION IS DESTROYED

       On February 17, 1998, Billy Lattimer filed a Petition for Declaratory Judgment under the
Uniform Administrative Procedures Act (UAPA), Tenn. Code. Ann. § 4-5-101 et seq. The petition
named as respondents/defendants the Tennessee Department of Correction (TDOC), the TDOC
Commissioner, and eight departmental employees. Mr. Lattimer, an inmate in the Department’s
Northeast Correctional Center, claimed that the defendants had destroyed or allowed the destruction
of personal property of both sentimental and monetary value.
        All the subsequent proceedings on Mr. Lattimer’s claims involved only jurisdictional issues,
and the Department neither denied nor admitted the facts alleged in his petition. The following
discussion therefore necessarily relies entirely upon the statements contained in his petition and his
brief on appeal, and the final resolution of his claims will depend on his ability to prove his
allegations.

        Mr. Lattimer claimed that he had accumulated a large collection of photographs while
incarcerated at Northeast Correctional Center (NECC), acquiring and possessing these photos with
both the knowledge and permission of the Tennessee Department of Correction. His collection
included commercially developed photos of his daughter, of his grandparents, and of friends and
relatives both living and deceased, as well as a great number of Polaroid pictures of his family taken
during their visits to him, which were produced as part of a prison photo project.

       In 1996, TDOC Commissioner Donal Campbell announced via memorandum a change in
the Department’s policies regarding possession of photographs by inmates. Under the new policy,
inmates could no longer acquire Polaroid photos, but prisoners already in possession of such photos
could retain them unless their security level was enhanced due to a disciplinary infraction, or they
were permanently transferred to another TDOC facility. Individuals who were transferred were
permitted to mail their photos elsewhere, but if this was not accomplished within thirty days, the
photos were to be destroyed.

        In February of 1997, Mr. Lattimer was temporarily removed from NECC for a court
appearance. While he was gone, correctional officers confiscated two bound photo albums,
apparently containing all of the prisoner’s photographs. Mr. Lattimer filed a grievance to obtain the
return of the albums. The grievance committee conducted a hearing on March 27, 1997, and issued
a recommendation that appears to have favored the return of the albums. Warden Howard Carlton
subsequently overruled the recommendation. Following an appeal by Mr. Lattimer, Assistant
Commissioner Charles Bass concurred with the Warden’s decision. The prisoner then inquired
about mailing the confiscated photographs out of the facility, and was informed that they had already
been destroyed.

       Mr. Lattimer subsequently filed the petition described above in the Chancery Court of
Davidson County. The individuals named in the petition as defendants/respondents included
Corporals Barlow and Morefield, the two property room officers who had allegedly confiscated and
destroyed the photographs, as well as Warden Carlton, Assistant Commissioner Bass, Commissioner
Campbell, and three departmental employees whose connection to the actions complained of was
not explained. The petitioner claimed that the monetary value of the destroyed photographs was
$3,600, and he asked the court to award him this sum, as well as punitive damages of $15,000 for
each named defendant. He also asked for a declaratory judgment that the defendants had violated
his constitutional due process rights, and for an order barring the confiscation of any other Polaroid
photographs in the possession of TDOC prisoners.




                                                 -2-
                                     II. COURT PROCEEDINGS

         On March 20, 1998, the Chancery Court ruled on Mr. Lattimer’s petition. The court found
that the action before it was primarily an action seeking damages for loss of property. Noting that
Tenn. Code. Ann. § 16-11-102 denies the Chancery Court jurisdiction over unliquidated damages
claims for injuries to persons or property not resulting from breach of contract, the court concluded
that it was therefore compelled to dismiss the petition.

        Mr. Lattimer appealed the ruling to this court. Upon considering the record, we reversed the
chancery court’s determination that it could not exercise jurisdiction over this case. Lattimer v.
Tennessee Dept. of Correction, App. No. 01A01-9804-CH-00200 (Tenn. Ct. App. Sept. 29, 1999).
We observed that Section (b) of Tenn. Code. Ann. § 16-11-102 mandates transfer to circuit court
rather than dismissal when a party objects to the chancery court exercising jurisdiction over an
unliquidated damage suit. It also allows the chancery court to hear and determine such a case “upon
the principles of a court of law” if no objection is made. Since no objection to jurisdiction had been
filed in this case, we concluded that Mr. Lattimer was entitled to be heard in chancery court.

         We also ruled, however, that Mr. Lattimer’s claim for Declaratory Judgment under the
Uniform Administrative Procedures Act was fatally flawed. Tenn. Code. Ann. § 4-5-224 of the
UAPA allows a party to seek a declaratory judgment to challenge the “legal validity or applicability
of a statute, rule or order of an agency to specified circumstances.” A prerequisite for such an action
is that the party first seek a declaratory order from the agency involved. Tenn. Code. Ann. § 4-5-
224(b). There was no allegation that the petitioner ever sought such a declaratory order. Thus, to
the extent that the trial court’s dismissal of the petition was also a dismissal of the claim under Tenn.
Code. Ann. § 4-5-224, we affirmed.

         On remand, the chancery court considered Mr. Lattimer’s claims, apart from those that are
cognizable under the UAPA. The court noted that although Mr. Lattimer did not specifically allege
a violation of 42 U.S.C. § 1983, his allegation that State employees violated his due process rights
while acting under color of law set forth the averments of a civil rights action under that federal
statute. The court ruled, however, that his allegations were insufficient to maintain such a claim,
because he did not plead or prove that state damage remedies were inadequate to address the alleged
wrong. See Hudson v. Palmer, 468 U.S. 517 (1984); Campbell v. Shearer, 732 F.2d 531 (6th Circuit
1984). Those claims were accordingly dismissed.

        The court observed that the petitioner’s allegations also appeared to describe a negligence
claim against State employees who were acting within the scope of their employment, a type of claim
which may be heard only by the Tennessee Claims Commission. See Tenn. Code. Ann. § 9-8-307.
The trial court accordingly dismissed the negligence claim without prejudice, so that Mr. Lattimer
might file an action with the Claims Commission. This appeal followed.




                                                  -3-
                                  III. THE CLAIMS COMMISSION

         The Tennessee Claims Commission has been endowed by the Legislature with exclusive
jurisdiction to determine all monetary claims against the State that fall within certain categories,
including claims for “negligent care, custody or control of personal property.” Tenn. Code. Ann. §
9-8-307(a)(1)(F). When a claim is brought in the Claims Commission, the only proper defendant
is the State itself, not the individuals responsible for the negligent conduct. Under Tenn. Code. Ann.
§ 9-8-307(b),

               Claims against the state filed pursuant to subsection (a) shall operate as a
        waiver of any cause of action, based on the same act or omission, which the claimant
        has against any state officer or employee. The waiver is void if the commission
        determines that the act or omission was not within the scope of the officer's or
        employee's office or employment.

       The waiver described in the above passage is consistent with the immunity granted to State
employees in Subsection (h) of the same statute. There are limits to that grant of immunity,
however, for the State is not willing to assume responsibility for every act of its employees, even
when they are acting within the scope of their employment:

               (h) State officers and employees are absolutely immune from liability for acts
        or omissions within the scope of the officer's or employee's office or employment,
        except for willful, malicious, or criminal acts or omissions or for acts or omissions
        done for personal gain . . . .

        Mr. Lattimer asserts that he has been the victim of a willful, deliberate, and intentional act
by those who destroyed his photos and those who supervised them. However, he has not alleged any
specific facts to support the theory that any of the defendants was acting out of an improper motive.
Thus, if the property at issue were something of a more impersonal nature, such as a television set,
a hobby kit, or a favorite article of clothing, we would have no difficulty agreeing with the trial court
that the appellant has at best asserted a claim for negligence, the type of claim for which the Claims
Commission was established.

        But a collection of family photos, organized and preserved in an album, is property of a
different nature. Even a person of limited intelligence would have no trouble recognizing that such
a collection represents an individual’s relationship to family and friends. When that individual is
imprisoned, and the opportunity to nurture those relationships is necessarily limited by his
incarceration, the existence of photos such as these may constitute one of the few connections the
prisoner can maintain with the world he has left behind.

       We are not questioning the right of prison authorities to confiscate photographs or any other
property in the possession of prisoners, when they deem it necessary in order to maintain safe and
secure conditions of confinement. But it is hard to imagine a justification for destroying property


                                                  -4-
of such a personally valuable nature without notice to the owner, and hard to blame such an
occurrence on mere carelessness by the parties responsible. An inference of malice is thus
permissible when such property is intentionally destroyed by a State employee without notice or legal
justification.

                                        IV. 42 U.S.C. § 1983

        The Congress of the United States has created a remedy for individuals who are deprived of
their constitutional rights by the action of state employees. Title 42 § 1983 of the United States Code
reads,

       “Every person who, under color of any statute, ordinance, regulation, custom or
       usage, of any State . . . subjects, or causes to be subjected, any citizen of the United
       States . . . to the deprivation of any rights, privileges, or immunities secured by the
       Constitution and laws, shall be liable to the party injured in an action at law, suit in
       equity, or other proper proceeding for redress."

       After first ruling that a claim under 42 U.S.C. § 1983 may be based on negligent conduct,
Parratt v. Taylor, 451 U.S. 527 (1981), the United States Supreme Court modified that holding, and
decided that in most cases such a claim was only available for deprivation of constitutional rights
based upon intentional or malicious conduct. Daniels v. Williams, 474 U.S. 327 (1986).

         Even where malice can be proven, however, the Supreme Court has ruled that a federal civil
rights claim based upon deprivation of property without due process of law cannot be maintained
so long as there exists an adequate state remedy. Hudson v. Palmer, 468 U.S. 517 (1984). In the
present case, the State contends that Mr. Lattimer’s right to bring suit in the Claims Commission is
just such an adequate remedy. We have established, however, that the State does not furnish a
remedy for “willful, malicious, or criminal acts or omissions” by its employees. It thus appears to
us that if the defendants’ conduct is found to be malicious (as Mr. Lattimer claims it to be) then there
is no remedy that the Claims Commission would be prepared to give.

                                   IV. THE WAIVER PROVISION

       In summary, the Claims Commission furnishes a remedy for injuries caused by the negligent
conduct of state officials or employees who are acting in their official capacities, and the only proper
defendant in such an action is the State itself. The United States Code furnishes a remedy for
malicious or intentional actions by State employees acting under color of law, which result in a
deprivation of constitutional rights, and the only proper defendants in this type of action are the
individuals themselves. 42 U.S.C. § 1983.

        We note that the waiver provision of Tenn. Code. Ann. § 9-8-307(b) is designed to prevent
a plaintiff from receiving duplicative or inconsistent judgments in different tribunals for the same
injury. It was not designed to force a litigant to make a premature and irrevocable choice between


                                                  -5-
tribunals or defendants, before his rights can be fully determined. See Lester v. Walker, 907 S.W.2d
812 (Tenn. Ct. App. 1995). In theory, if a plaintiff were successful in both forums, he would
probably have to make an election between their judgments.

        The more appropriate procedure, however, would be to hold the court proceedings in
abeyance until the Claims Commission can determine whether the plaintiff’s claim falls within its
charter. If the Claims Commission determines that the destruction of Mr. Lattimer’s albums was a
negligent act, arising from the scope of employment of the named individuals, then the waiver comes
into play, and the civil rights claim may be dismissed. As this court said, referring to claims against
the individual defendants in Lester v. Walker, 907 S.W.2d 812 (Tenn. Ct. App. 1995), “[u]ntil the
[Claims Commission] finds that all of the acts complained of were within the authority and duties
of the defendants as employees of the State of Tennessee, the pending claim against the state is not
conclusive of the rights of plaintiff against these defendants.” 907 S.W.2d at 815.

                                      V. THE PROPER PARTIES

        Title 42 U.S.C. § 1983 authorizes suit against “every person” who is responsible for alleged
violations of constitutional rights. However, the Department of Correction is not a “person” within
the meaning of the act. See Will v. Michigan Department of State Police, 491 U.S. 58 (1989).
Further, although Commissioner Campbell may have established the policy that led to the destruction
of the prisoner’s albums, Mr. Lattimer is not challenging the Commissioner’s authority to set policy
for the Department, but only the misuse or misapplication of the Commissioner’s policy by others.
We accordingly affirm the trial court’s dismissal of the appellant’s claims against both the
Department and Commissioner Campbell.

        We also note that Mr. Lattimer’s petition contains no allegation of facts to explain the
connection between three of the defendants he named and the actions complained of. He states that
they are culpable for failing to protect his rights, but fails to furnish any explanation of the role they
may have played or that he expected them to play in protecting his property or his rights. We
likewise affirm the dismissal of the claims against these defendants, Connie S. Klein, David Sexton
and Gene T. Cousins.

        Finally, the claims against Warden Carlton and Assistant Commissioner Bass are somewhat
problematic. They have not been accused of destroying the albums or of ordering them destroyed,
but only of overruling the grievance committee’s recommendation to return the albums to Mr.
Lattimer. Presumably, such decisions are within their authority. But if they knew at the time they
made their decision that the albums had already been destroyed, or if their actions were somehow
directed towards that result, then they ought to answer for the deprivation of rights that is the basis
of Mr. Lattimer’s claim. We thus reverse the trial court’s dismissal of the claim against these two
individuals, as well as against the two property room officers who allegedly destroyed Mr. Lattimer’s
albums.




                                                   -6-
                                               VI.

        That portion of the trial court’s order dismissing the civil rights claims against Corporal
Barlow, Corporal Morefield, Assistant Warden Carlton and Assistant Commissioner Bass is
reversed. In all other respects, the order is affirmed. Remand this cause to the Chancery Court of
Davidson County for further proceedings consistent with this opinion. Tax the costs on appeal to
the State of Tennessee.




                                             _________________________________________
                                             BEN H. CANTRELL, PRESIDING JUDGE, M.S.




                                               -7-
