JERRY DALE DUFFEY,                          )
                                            )
          Plaintiff/Appellant,              )       Appeal No.
                                            )       01-A-01-9607-CH-00324
v.                                          )
                                            )       Marshall County
WILLIAM CHARLES LEE, et al,                 )       No.   9795
                                            )
          Defendants/Appellees.             )
                                                                       FILED
                          COURT OF APPEALS OF TENNESSEE                  April 25, 1997

                            MIDDLE SECTION AT NASHVILLE                Cecil W. Crowson
                                                                      Appellate Court Clerk

         APPEAL FROM THE CHANCERY COURT FOR MARSHALL COUNTY

                                 AT LEWISBURG, TENNESSEE


                    THE HONORABLE LEE RUSSELL, CHANCELLOR




JERRY DALE DUFFEY, Pro Se
NCSC 7466 Centennial Blvd.
Nashville, Tennessee 37209-1052



CHARLES W. BURSON
Attorney General & Reporter

MARK H. CHEN
Civil Rights & Claims Division
Cordell Hull Building, 2nd Floor
Nashville, Tennessee 37243-0488
           ATTORNEYS FOR DEFENDANTS/APPELLEES




                                 AFFIRMED AND REMANDED




                                                           SAMUEL L. LEWIS, JUDGE
                                MEMORANDUM OPINION1

             This is an appeal by plaintiff/appellant, Jerry Dale Duffey, from the
chancery court’s judgment dismissing his complaint against Defendants. The facts
out of which this matter arose are as follows.


             Plaintiff was indicted on thirty-one counts of theft of property by fraud
and/or deceit. After all was said and done, Plaintiff was convicted on twenty-four of
the counts and was sentences to fourteen years and one month. The Court of Criminal
Appeals affirmed the conviction.


              On 30 May 1996, Plaintiff filed a complaint naming numerous defendants.
2
    Plaintiff sought to recover civil damages for violations of his civil rights.
Defendants filed a motion to stay the issuance of summons pending a hearing on
whether the lawsuit was “vexatious and abusive.” The chancery court granted the
motion and set a hearing date. After the hearing, the court found Plaintiff’s claims
were frivolous and malicious and dismissed the complaint pursuant to Tennessee
Code Annotated section 41-21-804(a)(2). Plaintiff filed a timely notice of appeal.


              There is no transcript or statement of the evidence filed or made a part of
the record on appeal. It is a well settled rule in this state that when there is no
transcript of the evidence courts will conclusively presume on appeal that the findings
of fact made by the trial court are supported by the evidence heard in that court.
Thus, this court must accept the trial court’s findings of fact as true. Rockwell v.
Arthur, 673 S.W.2d 512, 516 (Tenn. App. 1983).


              A court may dismiss an inmate’s lawsuit if the court finds the claim is
frivolous or malicious. Tenn. Code Ann. § 41-21-804(a)(2) (Supp. 1996). “In
determining whether a claim is frivolous or malicious under subsection (a), the court

         1
          Court of Appeals Rule 10(b):
         The Court, with the concurrence of all judges participating in the case, may affirm, reverse or
         modify the actions of the trial court by memorandum op inion when a formal opinion would have
         no precedential value. When a case is decided by memorandum opinion, it shall be designated
         "M EM ORA ND UM OPIN ION ," shall not be published, and shall not be cited or relied on for any
         reaso n in a sub sequent unre lated case.

         2
          The comp laint alleged eleven go vernmen t officials conspired with forty-nine private citizens to bring false
criminal charges against Plaintiff. All persons were named as defendants as was Marshall County, Tennessee.

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may consider whether or not: 1) The claim has a chance of success; 2) The claim has
a basis in law and in fact; and 3) The claim is substantially similar to a previous claim
filed by the inmate in that the present claim arises from the same operative facts.” Id.
§ 41-21-804(b).


          Here, the trial court conducted the statutory hearing and found Plaintiff’s
claim “does not have a chance of success and has no basis in fact or in law.” The
court further found the claim was “frivolous and malicious and amounts to no more
than an effort by the Plaintiff to seek revenge on those individuals who have in some
way contributed to his lawful conviction on criminal charges.” We must presume
these findings are correct in the absence of a transcript or statement of the evidence.


          Therefore, it results that the judgment of the trial court in dismissing
Plaintiff’s complaint is affirmed with costs assessed to the plaintiff/appellant, Jerry
Dale Duffey. The cause is remanded to the trial court for any further necessary
proceedings.




                                            ____________________________________
                                            SAMUEL L. LEWIS, JUDGE


CONCUR:


_____________________________________
HENRY F. TODD, P.J., M.S.


_____________________________________
BEN H. CANTRELL, J.




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