                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                             Assigned on Briefs September 2, 2016

   WILLIE JOHNSON V. TURNEY CENTER DISCIPLINARY BOARD ET AL.

                   Appeal from the Chancery Court for Hickman County
                     No. 15-CV-5594     Joseph A. Woodruff, Judge


                 No. M2016-00424-COA-R3-CV-Filed September 30, 2016


An inmate of the Tennessee Department of Correction filed a petition for common law
writ of certiorari seeking review of his prison disciplinary conviction. The trial court
dismissed the petition on the grounds that the court lacked subject matter jurisdiction to
review his petition because the petitioner failed to file the documents required under
Tenn. Code Ann. § 27-9-102, and failed to comply with the filing requirements of Tenn.
Code Ann. § 41-21-805 and § 41-21-807. This appeal followed. We affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which THOMAS
R. FRIERSON, II, and KENNY W. ARMSTRONG, JJ., joined.

Willie Johnson, Nashville, Tennessee, Pro se.

Herbert H. Slatery, III, Attorney General and Reporter, and Charlotte Davis, Assistant
Attorney General, Nashville, Tennessee, for the appellees, the Turney Center
Disciplinary Board, Daniel Epley, Debra Johnson, and Derrick Schofield.

                                  MEMORANDUM OPINION1

      Willie Johnson (“Petitioner”) is an inmate in the custody of Tennessee Department
of Correction, who is currently housed at the Riverbend Maximum Security Institution in

      1
          Tenn. Ct. App. R. 10 states:

      This Court, with the 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      opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and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 any unrelated case.
Nashville, Tennessee.2 On September 21, 2015, Petitioner filed a petition for common
law writ of certiorari with the Chancery Court of Hickman County, Tennessee, seeking
review of a disciplinary conviction by the Turney Center Disciplinary Board. The named
respondents are the Turney Center Disciplinary Board, Daniel Epley, Debra Johnson, and
Derrick Schofield (“Respondents”).

       Respondents filed a motion to dismiss the claim on October 23, 2015. The grounds
for the motion were that the trial court lacked subject matter jurisdiction because
Petitioner failed to supply the trial court with statutorily required documents that are to
accompany an inmate’s petition for writ of certiorari. The motion was granted and an
order dismissing the petition was entered on November 3, 2015. The order granting the
motion to dismiss the petition reads:

        This case came before the Court for review upon the petition for writ of
        certiorari and the Respondent’s motion to dismiss, after which the Court is
        of the opinion that the respondent’s motion is well-taken and should be
        granted. Petitioner failed to: (1) file the petition and the required supporting
        documents within the statutory limits of Tenn. Code Ann. § 27-9-102, and;
        (2) comport to the filing requirements of § 41-21-805 and § 41-21-807.
        Because Petitioner has not complied with these statutory requirements, the
        Court lacks subject matter jurisdiction to review his petition for writ of
        certiorari.

        Therefore, the motion to dismiss is GRANTED.

        Petitioner timely filed a Motion to Alter or Amend Judgment on November 20,
2015. Respondents filed their response in opposition to the motion on December 7, 2015.
The trial court denied the motion and a final judgment was entered on February 1, 2016.
The order denying the motion reads:

        This case is before the Court pursuant to Plaintiff’s Motion To Alter Or
        Amend Judgment, filed Nov. 20, 2015. Plaintiff, an inmate at the Turney
        Correctional Center, seeks an order altering or amending the Order
        Granting Motion To Dismiss Writ Of Cert entered by this court, Deanna
        Bell Johnson, Chancellor, on November 3, 2015.

        Plaintiff advances three arguments in support of his Motion: (i) Plaintiff
        was not accorded 30 days within which to answer the Defendants’ Motion
        To Dismiss; (ii) Plaintiff filed his writ timely in accordance with the so-

        2
          Petitioner was housed at the Turney Central Industrial Complex at the time of the incident that
gave rise to this litigation. However, he was transferred to Riverbend Maximum Security Institution in
August 2015.

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      called “inmate mailbox rule”; and, (iii) Plaintiff’s failure to comply with the
      requirements of T.C.A. Sections 41-21-805 and 41-21-807 should be
      excused due to delay in Plaintiffs receipt of the documents required by
      those code provisions to be filed with his writ.

      Defendant seeks to apply the time requirements for answering
      counterclaims with the notice and response requirements applicable to
      motions to dismiss. Plaintiff was not entitled to a thirty-day period for his
      response to Defendants’ motion. Therefore, for this reason, Plaintiff’s
      motion to alter or amend is not well taken.

      Plaintiff did not support his claim that his writ was timely filed with
      affidavits or other matters of an evidentiary nature. Nevertheless, for
      purposes of deciding this motion, the Court will accept Plaintiffs factual
      assertions with respect to the filing of his writ as having been proved. This,
      however, does not end the enquiry.

      Plaintiff admittedly failed to support his writ with certified copies of his
      inmate trust account, as is required by T.C.A. Sec. 41-21-805(c) and 41-21-
      807(a). The evidence filed by Plaintiff with his motion shows that Plaintiff
      requested such certified copies from the prison Records Office on
      September 4, 2015. The request was complied with and Plaintiff received
      the required records on September 21, 2015. Nevertheless, Plaintiff did not
      file such records until November 20, 2015 and even then failed to serve
      them on counsel for the Defendants. The Court agrees with Defendants’
      argument that “[t]he prisoner mailbox rule serves to protect inmates from
      untimely filings when prison officials are tardy mailing documents―not
      when inmates are tardy requesting and submitting documents.”

      In granting Defendants’ motion to dismiss, the Court wrote “Petitioner
      failed to: (1) file the petition and the required supporting documents within
      the statutory limits of [Tenn. Code Ann. § 27-9-102], and; (2) comport to
      the filing requirements of [Sec.] 41-21-805 and [Sec.] 41-21-807.”
      Plaintiffs motion to alter or amend provides no basis for granting Plaintiff
      relief from the Nov. 3, 2015 order. Plaintiffs Motion to Alter or Amend
      Judgment is therefore without merit and is due to be denied.

      IT IS THEREFORE ORDERED THAT: For the foregoing reasons,
      Plaintiffs Motion to Alter or Amend Judgment is DENIED.

This appeal followed.



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                                         ANALYSIS

       The dispositive issue in this appeal is whether the trial court properly dismissed
the petition for writ of certiorari for lack of subject matter jurisdiction.

        “Subject matter jurisdiction concerns the authority of a particular court to hear a
particular controversy.” Meighan v. U.S. Sprint Commc’ns Co., 924 S.W.2d 632, 639
(Tenn. 1996). It “cannot be conferred by waiver or consent,” Talley v. Bd. of Prof’l
Responsibility, 358 S.W.3d 185, 192 (Tenn. 2011), and “is generally defined by the
constitution or statute and conferred by the authority that organizes the courts.” Meighan,
924 S.W.2d at 639. Tenn. R. Civ. P. 12.02(1) states that lack of jurisdiction over subject
matter is grounds for dismissal. Appellate courts review the issue of subject matter
jurisdiction de novo without a presumption of correctness. See Chapman v. DaVita, Inc.,
380 S.W.3d 710, 712-13 (Tenn. 2012).

        Generally, litigants commencing a civil action in a Tennessee court must file a
cost bond and pay an initial filing fee. Spates v. Howell, 420 S.W.3d 776, 783 (Tenn. Ct.
App. 2013). However, indigent litigants may be excused from filing a cost bond by filing
a Uniform Civil Affidavit of Indigency stating that they are entitled to relief but are
unable to bear the expense of litigation due to their poverty. See Tenn. Code Ann.
§ 20-12-127; see also Tenn. Sup. Ct. R. 29 (“[A]ny civil action may be commenced by a
resident of this state without giving security as required by law for costs and without
payment of litigation taxes due by filing the oath of poverty set out in the statute and by
filing an affidavit of indigency as prescribed by court order.”). A person is deemed to be
indigent, or in poverty, if they meet the Legal Services Corporation’s poverty guidelines
published in Appendix A, Part 1611 of the Code of Federal Regulations. See Tenn. Sup.
Ct. R. 29. Once determined to be in poverty, litigants are considered to be proceeding in
forma pauperis.

       The foregoing notwithstanding, inmates who wish to proceed in forma pauperis
must comply with additional statutory requirements. Specifically, two statutes require
inmates to file, inter alia, a certified copy of their trust account along with their affidavit
of indigency. Tenn. Code Ann. § 41-21-805(c) expressly states that an inmate’s “affidavit
[of inability to pay court costs] must be accompanied by a current certified copy of the
inmate’s trust account statement.” Tenn. Code Ann. § 41-21-805(c) (emphasis added). A
second statute, Tenn. Code Ann. § 41-21-807(a), additionally provides:

       An inmate seeking to bring a civil action or appeal a judgment in a civil
       action or proceeding without prepayment of fees or security for the fees, in
       addition to filing the affidavit required by § 41-21-805, shall submit a
       certified copy of the trust fund account statement, or the institutional
       equivalent, for the inmate for the six-month period immediately preceding


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      the filing of the complaint or notice of appeal, obtained from the
      appropriate official of each facility at which the inmate is or was confined.

Tenn. Code Ann. § 41-21-807(a) (emphasis added).

        Petitioner failed to file a certified copy of his trust account statement, or
institutional equivalent, prior to the dismissal of his petition. On November 20, 2015, two
weeks after the case was dismissed, Petitioner filed a trust fund account statement that he
obtained two months earlier, on September 21, 2015; however, he failed to provide a
justifiable excuse for the delay in complying with the statutory requirements.

       An inmate’s failure to comply with Tenn. Code Ann. § 41-21-805 may be grounds
for dismissal. Tenn. Code Ann. § 41-21-804(a); see e.g., Williams v. Bell, 37 S.W.3d 477,
480 (Tenn. Ct. App. 2000); Moore v. Turney Ctr. Disciplinary Bd., No. M2009-01056-
COA-R3-CV, 2010 WL 1404444, at *2 (Tenn. Ct. App. Apr. 7, 2010). Because
Petitioner failed to comply with these requirements, the trial court properly exercised its
discretion in dismissing the petition for writ of certiorari and properly exercised its
discretion to deny the motion to alter or amend the order dismissing the petition.

       For the foregoing reasons, we affirm the dismissal of the petition for writ of
certiorari based on Petitioner’s violation of Tenn. Code Ann. § 41-21-805.

                                    IN CONCLUSION

       The judgment of the trial court is affirmed. Costs of appeal are assessed against
the appellant, Willie Johnson.


                                                  ________________________________
                                                  FRANK G. CLEMENT, JR., P.J., M.S.




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