ROCKY LEE COKER,                     )
                                     )   Davidson Brd. & Tenn. Claims
Claimant/Appellant,                  )   Commission
                                     )   Claim No. 97003162
VS.

DON SUNDQUIST, and the STATE
                                     )
                                     )
                                     )
                                         Appeal No.    FILED
                                         01A01-9806-BC-00318
OF TENNESSEE CLAIMS                  )
                                                       October 23, 1998
COMMISSION,                          )
                                     )
                                                      Cecil W. Crowson
      Defendants/Appellees.          )
                                                     Appellate Court Clerk

                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE

            APPEAL FROM THE TENNESSEE CLAIMS COMMISSION
                      AT NASHVILLE, TENNESSEE

       HONORABLE W. R. BAKER, COMMISSIONER, MIDDLE DIVISION


Rocky Lee Coker, C.P.L.
STSRCF, Unit 6, #108069
Route 4, Box 600
Pikeville, Tennessee 37367
PRO SE/CLAIMANT/APPELLANT


JOHN KNOX WALKUP
Attorney General and Reporter

Ms. Heather C. Ross
Assistant Attorney General
Cordell Hull Building, Second Floor
426 5th Avenue North
Nashville, Tennessee 37243-0499
ATTORNEYS FOR DEFENDANTS/APPELLEES




                           AFFIRMED AND REMANDED.



                                    HENRY F. TODD
                                    PRESIDING JUDGE, MIDDLE SECTION




CONCUR:
BEN H. CANTRELL, JUDGE

CONCUR IN THE RESULTS:
WILLIAM C. KOCH, JR., JUDGE
ROCKY LEE COKER,                                 )
                                                 )      Davidson Brd. & Tenn. Claims
Claimant/Appellant,                              )      Commission
                                                 )      Claim No. 97003162
VS.                                              )
                                                 )      Appeal No.
DON SUNDQUIST, and the STATE                     )      01A01-9806-BC-00318
OF TENNESSEE CLAIMS          )
COMMISSION,                                      )
                                                 )
       Defendants/Appellees.                     )



                                     OPINION

       The captioned claimant has appealed from the order of the Claims Commission rejecting

the claimant’s claim for failing to state a claim for which relief can be granted.



       Claimant’s “Amended Complaint” states:

                        16.    At all times material in this cause, plaintiff was
               confined on Unit 2 at Riverbend Maximum Security
               Institution (RMSI) in Nashville, Tennessee. Unit 2, RMSI, is
               the housing unit for those inmates sentenced to death, and is
               a small isolated group of inmates separated from the general
               population of inmates.
                                            ----
               DESCRIPTION OF INCIDENT
               Date of Occurrence: On or about 2/10/96 Time: A.M./P.M.
               Location: Knoxville/Nashville, TN State Agency involved:
               Governor Don Sundquist

                       1.      On or about February 10, 1996, the defendant
               Don Sundquist, with malicious intent to injure plaintiff,
               published, or caused to be written and published, of and
               concerning plaintiff, in a certain newspaper called the
               Knoxville News Sentinel, printed and published at its
               Nashville Bureau, Davidson County, Tennessee, and
               Knoxville, Knox County, Tennessee, as well as throughout
               other areas across the State of Tennessee, and having a large
               circulation in said County of Davidson, wherein plaintiff then
               and there resided, certain false, malicious, and libelous
               statements and the words and figures following:

                       2.     Defendant Sundquist, in his statements of and
               concerning plaintiff, published, inter alia, that plaintiff had
               committed the felonious crimes of mass murder and rape, and
               specifically “That [plaintiff] was the guy who committed 14
               murders and two rapes on death row,” and that plaintiff
               “committed the [m]ost grievous crime[s] imaginable.” A
               copy of said publication is attached hereto as Exhibit A.


                                                -2-
       No Exhibit A appears in the record before this Court. However, attached to the amended

complaint is an unidentified photostatic document reading as follows:

              DISHING OUT CRITICISM

                      Nashville - “I’m a pussy cat,” Gov. Don Sundquist
              says.

                      That remark came last week when a radio reporter
              asked about accusations that he is “mean-spirited” in some of
              his dealings in state government.

                     At the prompting of press secretary Beth Fortune, the
              governor responded to one such accusation from some of the
              inmates of death row. They accuse the governor of being
              “mean spirited” because he took away their satellite dish.

                      Three inmates and four citizens have filed a federal
              lawsuit against the governor and correction officials, claiming
              the satellite dish was paid for by donors and that the governor
              had no right to remove it.

                      “That was the guy who committed 14 murders and
              two rapes on death row who said I’m mean spirited,”
              Sundquist said. “If they think I’m mean-spirited, I would
              question the origin of the statement. How can someone who’s
              committed the most grievous crimes imaginable - who is
              slated to be executed - expect to have television access that
              most people in Tennessee don’t have”

                     “A satellite dish with all the Playboy channels may be
              dangerous to their health.”

                     The dish carried HBO and Cinemax to the prisons at
              Nashville’s Riverbend Maximum Security Institution. The
              suit was filed by convicted murders Terry King, Rocky Lee
              Coker and Michael Sample.

                      Sunquist also commented on a remark he made while
              attending the National Governor’s Association meeting in
              Washington, D.C., last week.

                      Sundquist called Republican presidential candidate
              Steve Forbes “goofy.” At the time, the governor was wearing
              a large cowboy hat that some might label goofy.

                     “I probably shouldn’t have said that,” Sundquist said
              of the reference to Forbes. “Sometimes you’re brutally
              honest, and I’m doing my best to obey the 11th
              Commandment to not speak ill of another Republican.

                     “But sometimes you have to call them like you see
              them. I’m going to try to do better.”
                                         ----



                                           -3-
               17.     Defendant’s article in this matter, and attached
       to the original claim as Exhibit A, is entitled “Dishing Out
       Criticism - Sundquist lashes death row convicts who called
       him ‘mean spirited.’ ” The statements in the article were
       intentionally made by defendant Sundquist, in a false and
       misleading manner, in retaliation for a civil action brought
       against him by three inmates names in the article.

               18.         The statements made by defendant were
       therefore made specifically about the small group of inmates
       in the article, of which plaintiff was a member, were false,
       misleading, and the statements were directed at plaintiff. This
       is because plaintiff’s name is explicitly stated in the article,
       and plaintiff is one of the three inmates in the small group
       who brought the civil action. Any reasonable person reading
       the article would know that defendant’s statements were a
       direct, malicious and retaliatory act by defendant against the
       small group of inmates generally and against plaintiff
       particularly.


The Order of the Commission states:

                The main reason why this Commission finds this to be
       a claim on which relief cannot be granted is that the
       newspaper article in question is not libelous or injurious at all.
       Any body who reads that newspaper article gets the message:
       men who have been sentenced to death in a Tennessee Court
       deserve to be deprived of entertainment, and when such men
       use language like “mean spirited” and go to Court to get their
       entertainment back then they are being ridiculous. Anybody
       who reads that newspaper article recognizes that the
       quotation, “That was the guy who committed 14 murders and
       two rapes on death row who said I’m mean spirited,” was an
       exaggeration, just a piece of mockery; anybody who reads that
       newspaper sees that this statement is not statistically precise.
       All human-beings --not just holders of high offices and
       newspaperwomen-- use exaggeration sometimes. People may
       say that men sentenced to death by Tennessee juries have
       “committed the most grievous crimes imaginable,” while they
       know that only people like Mao Tse-Tung and Pol Pot really
       have “committed the most grievous crimes imaginable.” We
       all talk like that sometimes, and talking like that is not slander
       or libel. And there is a very good reason why it is not slander
       or libel: because nobody who hears it takes it with nit-picking
       precision. Take the case of the mother who says to her child,
       “You’re just the worst little boy I’ve ever seen!” Nobody
       would say to her seriously, “You’re a liar! You’ve seen two
       little boys this morning who are worse than he is!” This
       claimant is arguing that mockery is libel, and it is not.
                                     ----
                 The State’s motion to dismiss is granted. The
       complaint, as amended, is dismissed.




                                        -4-
       On appeal, the claimant presents the following issues;

                        I.     Whether the Claims Commission erred in
               dismissing Plaintiff’s complaint for libel and group libel, and
               erroneously found that Defendant Sundquist’s statements in
               the article about Plaintiff were not libelous or injurious at all?

                       II.     Whether the Claims Commission erred in
               dismissing Plaintiff’s complaint, thereby failing to consider
               Plaintiff’s claims of infliction of humiliation and emotional
               distress, and false light invasion of privacy?


       Prior to consideration of appellant’s issues, it must be recognized that this is a claim

against the state and not a lawsuit against a newspaper or the person whose alleged oral remarks

were allegedly published by the newspaper.



       T.C.A. § 9-8-112 provides in pertinent part as follows:

                       Final judgments against state employees. - (a) The
               board of claims is authorized to pay final judgments for state
               employees, as defined in § 8-42-101, for any damages,
               including interest thereon, which are awarded in a final
               judgment in a civil lawsuit against the employee in a court of
               competent jurisdiction where it is determined by the board
               that the incident on which such damages were awarded
               occurred when the employee was acting in good faith within
               the scope of such employee’s official duty and under apparent
               lawful authority or orders.

                      (1)    No final judgment or interest thereon shall be
               paid where the employee’s conduct amounted to gross
               negligence or willful, intentional or malicious conduct.


       The Claim does not allege a final judgment against the originator or the publisher of the

allegedly defamatory statements. Moreover, the Claim states that the accused state employee

acted “with reckless disregard, intentional, reckless and malicious, with improper motives and

malice with intent to cause shock, mental suffering and severe emotional distress, humiliation,

anxiety pain and suffering, and depression.”



First Issue: Finding that alleged statements were not libelous or injurious.




                                                -5-
          The claim asserts that the claimant is a prisoner incarcerated on “Death Row.” This is

an admission that claimant is the subject of a final judgment of conviction of murder in the first

degree.



          Under the circumstances of this case, the appellant is “libel-proof; that is, as a matter of

law would suffer no damages to his reputation by the words alleged to have been spoken.

Cardillo v. Doubleday, 2nd Cir. 1975; 518 F.2d 638; Ray v. Time, Inc., (W.D. Tenn. 1976), 452

F.Supp. 618.



          The claim fails to state an actionable wrong for the reason that it states that the alleged

defamation referred to a group of three of which claimant is a member and the claim does not

allege that the claimant himself was named in the alleged defamatory statement.



          The gravamen of an action for defamation is injury to the reputation of the plaintiff - not

injury to his self esteem, emotions or mental state.



          Character is:

                 The predisposition or habit, or aggregate of ethical qualities
                 which belong to and distinguish an individual person; the
                 general result of the one’s distinguishing attributes.
                                              ----
                 That moral predisposition or habit or aggregate of ethical
                 qualities, which is believed attached to a person on the
                 strength of the common opinion and report concerning him.
                                              ----
                 Although “character” is often used in the sense of
                 “reputation”, the terms are distinguishable.
                                              ----
                 “Character” is what a man is, and reputation is what he is
                 supposed to be. “Character” depends on attributes possessed,
                 and reputation on attributes which others believe one to
                 possess.

                  Black’s Law Dictionary, Fourth Edition, p. 294.




                                                  -6-
        The words, character and reputation have been used interchangeably because where

character is relevant, it is proved by a “character witness” whose testimony must be confined to

reputation. Thus, “character” must be proven by reputation and not by acts.



        In Quality Auto Parts Co., Inc. v. Bluff City Buick Co., Inc., et al, the appeal was from

the dismissal of the suit of an employee of Bluff City against his employer for slander by

accusing him of falsifying records. The Supreme Court dismissed the slander action as time-

barred and said:

                        The basis of an action for defamation, whether it be
                for slander or libel, is the defamation resulted in an injury to
                the person’s character and reputation.


        Clearly, the words “character and reputation” were intended to mean “reputation in

respect to character, for character may be shown only by reputation.



        In Little Stores v. Isenberg, the plaintiff obtained a jury verdict for damages from a false

allegation of shoplifting. This Court affirmed and said:



                        The “character” of an accused means his fixed
                disposition or tendency, as shown by his habits, through the
                manifestation of which his general reputation, good or
                otherwise, is obtained. Keith v. State, 127 Tenn. 40, 152 S.W.
                1029 (1913).


        The claim shows on its face that the claimant is a convicted murderer worthy of death.

Therefore, neither his reputation nor his character could be impaired by the language allegedly

spoken and published.



        This Court concludes that the State is not liable to a convicted murderer, for his character

is judicially declared to be evil, and, as a result, his reputation is that of a murderer.



        For the foregoing reasons, the claim fails to state grounds for recovery.



                                                -7-
Second Issue: Humiliation, emotional distress, invasion of privacy.



       These elements of damage may apply if a valid right of action for defamation is shown.

However, the claim does not allege an actionable case of defamation without which there can

be no recovery for humiliation, emotional distress or invasion of privacy.



       No merit is found in appellant’s second issue.



       This opinion is not authority for the principle that prison inmates may not resort to the

Courts to redress libels committed against them in or out of prison. See Cardillo, above.



       The judgment of the Trial Court is affirmed. Costs of this appeal are assessed against the

appellant. The cause is remanded to the Trial Court for necessary further proceedings.



                             AFFIRMED AND REMANDED.




                                                     _________________________________
                                                     HENRY F. TODD
                                                     PRESIDING JUDGE, MIDDLE SECTION




CONCUR


____________________________:
BEN H. CANTRELL, JUDGE


CONCUR IN RESULTS:


____________________________
WILLIAM C. KOCH, JR., JUDGE



                                              -8-
