ANTONIO SWEATT,                         )
      Petitioner/Appellant,             )   Appeal No.
v.                                      )   01-A-01-9706-CH-00247
ROBERT CONLEY, Warden, WILLIAM          )
CALHOUN, Unit Manager, DALE             )
BASHAM, Inmate Relations Coordinator,   )   Chancery Court No.
SHELIA ROBERTS, Counsel, HATTIE         )   96-1100-III
MOORE, Inmate Relations Coordinator,    )
EDNA FREEMAN, Health Administrator,
DR. HAROLD BUTLER, Medical
                                        )
                                        )            FILED
Physician,                              )
      Respondents/Appellees.            )            December 5, 1997

                 COURT OF APPEALS OF TENNESSEECecil W. Crowson
                                                    Appellate Court Clerk

                   MIDDLE SECTION AT NASHVILLE

     APPEAL FROM THE DAVIDSON COUNTY CHANCERY COURT

                     AT NASHVILLE, TENNESSEE

        THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

MR. ANTONIO SWEATT, PRO SE
TDOC #143176
L.C.R.C.F.
Rt. #1, Box #330
Tiptonville, Tennessee 38079

JOHN KNOX WALKUP
Attorney General & Reporter
ABIGAIL TURNER
Assistant Attorney General
Civil Rights & Claims Division
2nd Floor Cordell Hull Building
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
      ATTORNEY FOR RESPONDENTS/APPELLEES, ROBERT CONLEY,
      WILLIAM CALHOUN, DALE BASHAM, SHELIA ROBERTS, HATTIE
      MOORE, AND EDNA FREEMAN

C. HAYES COONEY
Watkins, McGugin, McNeilly & Rowan, P.L.L.C.
214 2nd Avenue North, Suite 300
Nashville, Tennessee 37201-1638
      ATTORNEY FOR RESPONDENT/APPELLEE, DR. HAROLD BUTLER


              AFFIRMED AS MODIFIED AND REMANDED

                                             SAMUEL L. LEWIS, JUDGE
                                       OPINION
       This is an appeal by petitioner/appellant, Antonio Sweatt, from an order of the
Davidson County Chancery Court dismissing Appellant’s petition against
respondents/appellees Robert Conley, William Calhoun, Dale Basham, Shelia
Roberts, Hattie Moore, Edna Freeman, and Dr. Harold Butler. The chancery court
dismissed Appellant’s petition with prejudice after determining Appellant failed to
state a claim upon which relief could be granted. The facts out of which this matter
arose are as follows.


       Appellant is an inmate in the custody of the Tennessee Department of
Correction and housed at the Lake County Regional Correction Facility (“the
Facility”). Mr. Sweat filed a “petition for writ of mandamus petition for a declaratory
order and motion for temporary and permanent injunctive and affirmative equitable
relief with brief memorandum in support” on 8 April 1996. In his petition, Appellant
alleged the respondents1 violated his Constitutional rights by confining him to a cell
with a smoker. Appellant alleged he first requested placement in the non-smoking
guild upon entering the Facility on 1 March 1995. Appellant explained to Appellees
and Dr. Butler that doctors had diagnosed him with chronic sinusitis and that inhaling
second-hand cigarette smoke caused him to suffer nosebleeds, migraine headaches,
and a swollen tongue. Finally, Mr. Sweat alleged that he filed numerous grievances.
Ultimately, the Facility transferred Appellant to the non-smoking guild on 11 April
1995. In his petition, however, Appellant alleged he was still forced to breathe
second-hand smoke despite his transfer because Appellees allowed “active heavy
smokers” to live in the non-smoking guild.


       Dr. Butler filed a motion to dismiss on 30 April 1996. He contended venue
was improper under Tennessee Code Annotated section 20-4-102 and forum non
conveniens. Appellant filed a motion to amend his complaint on 6 May 1996. He
sought to add eight parties and a claim involving retaliation. Appellees filed a motion
to dismiss for lack of venue and forum non conveniens on 8 May 1996.


       The court filed an order on 31 May 1996 addressing Dr. Butler’s motion. The


       1
        Respondents Conley, Calhoun, Basham, Roberts, Moore, and Freeman will be referred to
as (“Appellees”), and respondent Dr. Harold Butler will be referred to as “Dr. Butler.”

                                             2
court dismissed the action “on the grounds that venue does not lie in Davidson
County, Tennessee.” On 17 June 1996, the court filed an order granting Appellant’s
motion for leave to file an amended complaint and overruling Appellees’ motion to
dismiss for lack of venue. The court did not explain the basis for its decisions.
Appellees filed a motion to dismiss for failure to state a claim upon which relief can
be granted on 9 July 1996.


      Appellant filed a motion for summary judgment on 18 July 1996. Appellees
filed a motion to strike Appellant’s motion for summary judgment. Their motion
stated: “As a basis for this motion, [Appellees] rely on the disjointed and inconsistent
nature of the documents and on the [Appellant’s] failure to follow Local Rule
12.05(c), and provide defendants with a notice of hearing.”2 The court granted
Appellees’ motion on 4 September 1996. Appellant filed a motion for leave to file
a supplemental complaint on 22 January 1997.


      The court filed a memorandum and order on 24 January 1997. The court held
Appellant failed to state a claim for a declaratory judgment for the following reasons:
1) Appellant failed to allege he requested a declaratory order from the agency as
required by Tennessee Code Annotated section 4-5-224(b); 2) Appellant failed to
specify any statute, rule, or order as the subject of the action; 3) Appellant improperly
sought a declaratory judgment against state officers in their official capacity; and 4)
Appellant’s claim is actually a section 1983 action for the violation of his civil rights.
The court also determined the complaint failed to state a claim requiring the relief of
mandamus because the petition failed “to set forth or define any preemptory
obligation to act with respect to the cell assignment by the petitioner or his
roommate.”     Given its findings, the court dismissed Appellant’s action with
prejudice. Thereafter, Appellant filed a notice of appeal from the 24 January order.
The court entered a final order on 4 February 1997. The court overruled Appellant’s

      2
        Appellant’s motion for summary judgment stated:
              Comes Now, the plaintiff, Antonio Sweatt (hereinafter referred to as
      plaintiff), by and through Pro-se counsel, and pursuant to Tennessee Rules of Civil
      Procedure, rule 56 hereby move the court to summarily granting the Motion of
      Plaintiff’s because there is Genuine dispute as to a summary judgment as a matter of
      law. The Plaintiff is entitled to summary judgment rejecting the defendants demands
      against him as a matter of law supported by the contemporaneously filed
      Memorandum of Law i[n] Support of Motion for Summary Judgment. In Further
      support of this Motion for summary Judgment, plaintiff contemporaneously file a
      statement of Disputed Facts, and Exhibits.

                                               3
outstanding motions, including his motion for leave to file a supplemental complaint,
after determining the motions were moot.


       Appellant lists twelve issues for our review, nevertheless, there appear to be
only four disputes. These are: 1) whether the court erred in granting Appellees’3
motion to dismiss for failure to state a claim upon which relief can be granted; 2)
whether the court erred in granting Respondent’s motion to stay discovery; 3)
whether the court erred in dismissing Appellant’s motion for summary judgment; and
4) whether the court erred in overruling Appellant’s motion for leave to file a
supplemental complaint.


I.     MOTION TO DISMISS


       Tennessee Rules of Civil Procedure 12.02 describes the different types of
motions to dismiss and how a party should present the defense asserted in the motion.
The rule provides: “[T]he following defenses may at the option of the pleader be
made by motion in writing: (1) lack of jurisdiction over the subject matter . . . (3)
improper venue . . . (6) failure to state a claim upon which relief can be granted . . .
.” TENN R. CIV. P. 12.02. Appellees’ motion specifically stated the basis of its
motion as number six, failure to state a claim upon which relief can be granted.


       A motion to dismiss for failure to state a claim upon which relief can be
granted “tests the legal sufficiency of a complaint; it admits the truth of all relevant
and material allegations, ‘but asserts that such facts do not constitute a cause of action
as a matter of law.’” Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn. 1997) (quoting
Pursell v. First Am. Nat’l Bank, 937 S.W.2d 838 (Tenn.1996) (emphasis added)).
“In reviewing an appeal from an order dismissing a suit for failure to state a claim
upon which relief can be granted, we obviously are limited to the allegations in the
complaint, and we must construe the complaint liberally in favor of the plaintiff,
taking all of the allegations of fact therein as true.” Randolph v. Dominion Bank, 826
S.W.2d 477, 478 (Tenn. App. 1991) (citing Huckeby v. Spangler, 521 S.W.2d 568,
571 (Tenn. 1975)). “However, the inferences to be drawn from the facts or the legal

       3
          Appellant’s notice of appeal expressly states that he is appealing the 24 January 1997 order.
It does not mention the 31 May 1996 order granting Dr. Butler’s motion. Therefore, it is the opinion
of this court that this appeal involves only those respondents referred to herein as “Appellees.”

                                                  4
conclusions set forth in a complaint are not required to be taken as true.” Riggs, 941
S.W.2d at 47-8 (citing Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. App.1992)).


      Appellant’s petition attempts to state three claims. The first two, writ of
mandamus and declaratory judgment, are listed in the caption. The third claim,
violation of Appellant’s civil rights, is apparent from a reading of the petition. Thus,
the issue before this court is whether the petition, using the test stated above, states
a claim for writ of mandamus, declaratory judgment, or violation of civil rights.


      A.     WRIT OF MANDAMUS


      A writ of mandamus is “a summary remedy, extraordinary in its nature.”
Peerless Constr. Co. v. Bass, 158 Tenn. 518, 522, 14 S.W.2d 732, 733 (1929). “‘The
office of mandamus is to execute, not adjudicate. It does not ascertain or adjust
mutual claims or rights between the parties. If the right be doubtful, it must be first
established in some other form of action; mandamus will not lie to establish as well
as enforce a claim of uncertain merit.’” Id. at 732 (quoting FERRIS, EXTRAORDINARY
LEGAL REMEDIES § 194) (quoted in Paduch v. City of Johnson City, 896 S.W.2d
767, 770 (Tenn. 1995)). Another requisite of obtaining a writ of mandamus is the
lack of any other “specific remedy to enforce the right.” Hayes v. Civil Serv.
Comm’n, 907 S.W.2d 826, 828 (Tenn. App. 1995). “Mandamus generally will not
be issued if the petitioner has a legal remedy that is equally convenient, complete,
beneficial, and effective . . . .” Meighan v. U.S. Sprint Communications Co., 942
S.W.2d 476, 479 (Tenn. 1997).


      Appellants’ petition fails to state a claim for writ of mandamus. Appellant
alleges in his petition that there are non-smoking policies at the Facility, in particular
policy number 112.10. Appellant also contends appellee Robert Conley failed to
enforce these policies. For the sake of this opinion, we will assume Appellant has a
right to have these policies enforced and Appellees have an obligation to enforce the
policies. As previously stated, Appellant has attempted to state a section 1983 civil
rights claim for damages and a declaratory judgment claim in addition to his petition
for writ of mandamus. The Tennessee Supreme Court has held that a “§ 1983 is an
adequate remedy, thus obviating the need for a writ of mandamus . . . .” Davis v.


                                            5
McClaran, 909 S.W.2d 412, 420 n.8 (Tenn. 1995). Moreover, a party may petition
a court to determine the “legal validity or applicability of a statute, rule or order of
an agency.” TENN. CODE ANN. § 4-5-224(a) (Supp. 1997). As a matter of law,
Appellant could not have stated a claim for a writ of mandamus if he had other
remedies available. Clearly, this is the case. Appellant could have a remedy under
either section 1983 or Tennessee Code Annotated section 4-5-224.


      B.     DECLARATORY JUDGMENT


      Appellant asserts a declaratory judgment claim under the Declaratory Judgment
Act, Tennessee Code Annotated section 29-14-103, and the Uniform Administrative
Procedures Act, Tennessee Code Annotated section 4-5-224. We address each of
these claim separately.


      The Declaratory Judgment Act provides:
      Any person interested under a deed, will, written contract, or other
      writings constituting a contract, or whose rights, status, or other legal
      relations are affected by a statute, municipal ordinance, contract, or
      franchise, may have determined any question of construction or validity
      arising under the instrument, statute, ordinance, contract, or franchise
      and obtain a declaration of rights, status or other legal relations
      thereunder.
Id. § 29-14-103 (1980). There are, however, certain limitations on a court’s ability
to hear claims based on the above section. Specifically, a court may not entertain a
suit “against the state, or against any officer of the state acting by authority of the
state, with a view to reach the state, its treasury, funds, or property.” Id. § 20-13-102
(1994); see Hill v. Beeler, 199 Tenn. 325, 332, 286 S.W.2d 868, 871 (1956);
Campbell v. Sundquist, 926 S.W.2d 250, 256-57 (Tenn. App. 1996); Carter v.
McWherter, 859 S.W.2d 343, 346 (Tenn. App. 1993). It is the opinion of this court
that Appellant seeks to reach the state treasury through this action and that the
chancery court does not have jurisdiction to hear the case for this reason.


      Appellant also attempts to bring a declaratory judgment action under
Tennessee Code Annotated section 4-5-224. This section 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.” TENN. CODE ANN. § 4-5-224(a)
(Supp.1997). A party must, however, seek a declaratory order from the agency prior

                                           6
to filing a petition for declaratory judgment. See id. § 4-5-224(b). The chancery
court stated as follows in its memorandum and order:
      In the complaint there is no allegation that the petitioner sought any
      relief from the agency before he invoked the jurisdiction of this Court.
      Accordingly, any claim the petitioner is making under Tennessee Code
      Annotated section 4-5-224(b) must be dismissed on the grounds that this
      Court does not have jurisdiction under that statute where that agency has
      not been first petitioned.
It is the opinion of this court that the chancery court correctly concluded that it lacked
subject matter jurisdiction.


      C.     SECTION 1983 CIVIL RIGHTS ACTION


      Section 1983 provides:
      Every person who, under color of any statute, ordinance, regulation,
      custom, or usage, of any State or Territory or the District of Columbia,
      subjects, or causes to be subjected, any citizen of the United States or
      other person within the jurisdiction thereof 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 . . . .
42 U.S.C.A. § 1983 (Supp. 1997). Thus, a petitioner must at the very least allege: 1)
he or she is a citizen of the United States or within the jurisdiction; 2) he or she
possesses a right, privilege, or immunity secured by the Constitution or laws of the
United States; 3) a person acting under color of state law deprived the petitioner of
that right, privilege, or immunity. It is the opinion of this court that Appellant met
these requirements. He alleged Appellees violated his constitutional rights when they
refused to transfer him to a non-smoking guild and then refused to enforce the non-
smoking policy once they had transferred Appellant. In addition, Appellant alleged
in detail the position held by each respondent and their role in depriving Appellant
of his constitutional rights. Appellant stated a claim under title 42 section 1983 of
the United States Code.


      Appellees, however, also raise the issue of venue in their brief. It is their
contention that Appellant’s petition failed to allege facts establishing that venue lies
in the Davidson County Chancery Court. The chancery court overruled Appellees’
motion to dismiss for improper venue in its 17 June 1996 order. Unfortunately, the
court did not provide any explanation for its decision. We can only assume the court


                                            7
based its improper venue determination on the declaratory judgement and writ of
mandamus actions because these were the only actions addressed by the court when
deciding Appellees’ motion to dismiss for failure to state a claim. Thus, it seems the
chancery court did not determine whether venue was proper given the fact that
Appellant stated a section 1983 claim.


       It is the opinion of this court that venue in the Davidson County Chancery
Court is improper. A claim for a violation of civil rights is a transitory action.4
Tennessee Code Annotated section 20-4-101 provides where venue lies in civil
actions of a transitory nature.5 That section provides:
             (a) In all civil actions of a transitory nature, unless venue is
       otherwise expressly provided for, the action may be brought in the
       county where the cause of action arose or in the county where the
       defendant resides or is found.
             (b) If, however, the plaintiff and defendant both reside in the same
       county in this state, then such action shall be brought either in the
       county where the cause of action arose or in the county of their
       residence.
TENN. CODE ANN. § 20-4-101(a),(b) (1994). There are no statutes specifically
providing for venue in section 1983 actions. Thus, the proper venue in this case is
either in the county where the cause of action arose or in the county where Appellees
reside or are found. See id.


        It is clear from the petition that the cause of action arose at the Facility in Lake
County. In addition, we know from the petition that Appellees Calhoun, Basham,
Roberts, Moore, and Freeman worked in Lake County and Appellee Conley worked
in Lauderdale County at the time Appellant filed the petition. There are not,
however, any allegations regarding the residences of Appellees or any evidence of
where Appellees were found. It is reasonable to infer, however, that Appellees did


       4
         “Transitory actions are actions for causes that may have happened anywhere . . . .” Curtis
v. Garrison, 211 Tenn. 339, 342, 364 S.W.2d 933, 934 (1963). A cause of action that may arise
anywhere is transitory, but one that could arise only in one place is local. See Burger v. Parker, 154
Tenn. 279, 290 S.W. 22, 22 (1927). A person may violate another’s civil rights anywhere, thus, a
claim for the violation is a transitory action. See id. at 22-23
       5
           In 1996, the general Assembly enacted a set of statutes governing the filing of lawsuits by
inmates. See 1996 TENN. PUB. ACTS ch. 913. Included within these statutes is a provision requiring
a plaintiff inmate to file a claim for an action which accrued while the plaintiff was an inmate in the
county in which the facility is located. See id. § 3. These statutes are not, however, applicable to
the instant case as they were not effective until 8 May 1996 and Appellant filed his petition in April
1996.

                                                  8
not reside in Davidson County and were not found in Davidson County as Lauderdale
and Lake Counties are on the western boundary of the State and Davidson County is
near the center of the State. Because the cause of action did not arise in Davidson
County and Appellees did not reside in or were not found in Davidson County, venue
did not lie in Davidson County. Thus, the chancery court erred when it overruled
Appellees’ motion to dismiss for improper venue. Moreover, pursuant to Rule 13(b)
of the Tennessee Rules of Appellate Procedure this court holds that venue was also
improper as to those respondents added as a result of the amended petition. Our
reasoning being the same as that stated above.


      It is the opinion of this court that Appellant failed to state a claim for writ of
mandamus and that the Davidson County Chancery Court lacked subject matter
jurisdiction over the declaratory judgment actions. Appellant stated a claim for a
violation of his civil rights under title 42 section 1983 of the United States Code, but
filed his claim in the wrong court. It is the opinion of this court that the motion to
dismiss should have been granted for the above stated reasons. Given our decision,
it is our opinion that the claim for writ of mandamus should be dismissed
with prejudice and the declaratory judgment actions and the section 1983 action
should be dismissed without prejudice. See TENN. R. CIV. P. 41.02(3); Randle v.
Lyle, 682 S.W.2d 219, 220 (Tenn. App. 1984).


II.   OTHER MOTIONS


      A.     MOTION TO STAY DISCOVERY


      It is the opinion of this court that the chancery court did not err in granting
Appellees’ motion to stay discovery pending the outcome of the motion to dismiss
for failure to state a claim. The holding was appropriate given the nature of the
pending motion and burden of continuing discovery.


      B.     MOTION FOR SUMMARY JUDGMENT


      It is the opinion of this court that the chancery court correctly dismissed
Appellant’s motion for summary judgment.                Not only was the motion
incomprehensible, but it admitted there were disputed, genuine issues of fact. A party
                                           9
is not entitled to summary judgment if there are genuine issues of material fact. Byrd
v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The Tennessee Supreme Court defined
a material fact as follows:
       A disputed fact is material if it must be decided in order to resolve the
       substantive claim or defense at which the motion is directed. Therefore,
       when confronted with a disputed fact, the court must examine the
       elements of the claim or defense at issue in the motion to determine
       whether the resolution of that fact will effect the disposition of any of
       those claims or defenses.
Id. at 215. The record in this case contains disputes over facts material to the
determination of whether Appellees violated Appellant’s constitutional rights.
Therefore, we find no error with the chancery court’s decision to dismiss Appellant’s
motion for summary judgment.


       C.    MOTION TO SUPPLEMENT


       The Tennessee Rules of Civil Procedure provide:
              A party may amend the party's pleadings once as a matter of
       course at any time before a responsive pleading is served . . . .
       Otherwise a party may amend the party's pleadings only by written
       consent of the adverse party or by leave of court; and leave shall be
       freely given when justice so requires.
Appellant had already amended his complaint once when he filed the motion to
supplement his petition. Thus, it was necessary to receive written consent of
Appellees and the respondents added as a result of the first amendment or permission
from the court.


       The chancery court denied Appellant’s request. It determined the issue was
moot because the court had dismissed the case for failure to state a claim upon which
relief can be granted. We agree with the trial court’s ruling.


III.   CONCLUSION


       Therefore, it follows that the decision of the chancery court is affirmed as
modified. The case is remanded for the entry of a judgment in conformity with this
decision and for any further necessary proceedings. Costs of appeal are taxed against
petitioner/appellant, Antonio Sweatt.


                                          10
                                    ____________________________
                                    SAMUEL L. LEWIS, JUDGE


CONCUR:


____________________________
BEN H. CANTRELL, JUDGE



____________________________
WILLIAM C. KOCH, JR. JUDGE




                               11
