           IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
                                AT JACKSON

                 _______________________________________________________
                                                                                         FILED
                                                                                          October 1, 1997
                                                 )
ISSAC LYDELL HERRON,                             )          Lauderdale Circuit Court     Cecil Crowson, Jr.
                                                 )          No. 4720                     Appellate C ourt Clerk
   Plaintiff/Appellant.                          )
                                                 )          C.A. No. 02A01-9706-CV-00117
VS.                                              )
                                                 )          HON. JOSEPH H. WALKER, JUDGE
ELIZABETH T. RICE, et al,                        )
                                                 )          AFFIRMED AND REMANDED
                                                 )
   Defendants/Appellees.                         )          OPINION FILED:
                                                 )

Issac Lydell Herron, Pro Se

John Knox Walkup, Attorney General & Reporter
Abigail Turner, Assistant Attorney General
for Defendants/Appellees Elizabeth T. Rice and Jimmy Harrison
______________________________________________________________________________

                          MEMORANDUM OPINION1
______________________________________________________________________________

                                                                   FARMER, J.



                  Issac Lydell Herron appeals from the trial court’s order dismissing his petition for a

writ of mandamus. The complaint alleges that Mr. Herron is the president and incorporator of the

Church of God at Cold Creek, Inc., a Tennessee corporation. Jimmy Harrison is the warden of Cold

Creek Correctional Facility (CCCF) and Elizabeth T. Rice is the District Attorney General of the

25th Judicial District. Although not specifically stated in the complaint, it is apparent from the

exhibits to the complaint that Mr. Herron is incarcerated at CCCF.



                  The complaint alleges that defendant Rice refused Herron’s2 request to criminally

prosecute defendant Harrison for failure to comply with §§ 48-51-201; 48-53-101 and 48-53-


       1
          Rule 10(Court of Appeals). Memorandum Opinion. -- (b) The Court, with
concurrence of all judges participating in the case, may affirm, reverse or modify the actions of
the trial court by memorandum opinion when a formal opinion would have no precedential value.
When a case is decided by memorandum opinion it shall be designated “MEMORANDUM
OPINION,” shall not be published, and shall not be cited or relied on for any reason in a
subsequent unrelated case.
       2
           The corporation is not a party to this action.

                                                     1
102(18)(19) of the Tennessee Code Annotated. Apparently the corporation over which Herron

presides sought and was refused permission from Warden Harrison to operate certain business

ventures within the penal institution. Although not specified, it would appear from exhibits to the

complaint that one of these ventures included the operation of a popcorn popper.



                The statutes under which Mr. Herron requested General Rice prosecute Warden

Harrison are not criminal statutes. T.C.A. § 48-51-201 contains definitions pertaining to nonprofit

corporations. Section 48-53-101 pertains to the purpose of corporations and § 48-53-102(18)-(19)

allows a corporation to carry on business and do all things necessary or convenient, not inconsistent

with law, to further its activities and affairs.



                Even if Herron sought to require General Rice to prosecute Warden Harrison, for

violation of criminal statutes, prosecutors have a great deal of discretion in determining whether to

pursue criminal charges. See United States v. Davis, 15 F.3d 526 (6th Cir. 1994). Mandamus

against a public official will lie only to require performance of a ministerial nondiscretionary act of

the official. State ex rel. Cole v. Francisco, 643 S.W.2d 105 (Tenn. 1982). The writ is used to

compel an official to perform an act which he has a legal duty to perform and will not lie to control

official judgment or discretion. State ex rel. Byram v. City of Brentwood, 833 S.W.2d 500, 505

(Tenn. App. 1991) perm. app. denied (1992).



                The complaint also alleges that Harrison utilized Department of Correction

administrative policies and procedures to deprive plaintiff of the statutory powers granted the

corporation. It was clearly not the legislative intent in passing statutes governing corporations, and

vesting them with certain powers, to allow an inmate to create a corporation and thus circumvent

policies and procedures of the Department.



                The complaint further seeks to recover damages, presumably from both defendants,

for withholding the rights guaranteed to him under the aforementioned corporate statutes. State

officers and employees are absolutely immune from liability for acts or omissions within the scope

of their office or employment, except for willful, malicious or criminal acts or for acts or omissions

                                                   2
done for personal gain. T.C.A. § 9-8-307(h). There are no allegations of willful, malicious or

criminal acts or omissions or for acts or omissions done for personal gain. State employee includes

one who is employed in the service of and whose compensation is payable by the state. T.C.A. § 8-

42-101(3)(A). The complaint further alleges that defendant Rice, by her failure to criminally

prosecute Warden Harrison, violated Mr. Herron’s rights under the First and Fourteenth

Amendments to the Constitution of the United States and Article I § 3 and 8 and Article XI § 8 of

the Constitution of the State of Tennessee. We, like the trial court, fail to see how the failure of the

District Attorney General to accede to Mr. Herron’s request to criminally prosecute Warden Harrison

constitutes a violation of any of the aforementioned constitutional guarantees.



               We affirm the trial court’s order of dismissal and tax the costs of this appeal to Issac

Lydell Herron, for which execution may issue if necessary.



                                                       ____________________________________
                                                       FARMER, J.



______________________________
CRAWFORD, P.J., W.S. (Concurs)



______________________________
LILLARD, J. (Concurs)




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