                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON


ANTONIO SWEATT,

             Plaintiff/Appellant,
                                          )
                                          )
                                          ) Lake Circuit No. 98-7744
                                                                                FILED
                                          )                             February 25, 1999
VS.                                       ) Appeal No. 02A01-9808-CV-00227
                                          )                             Cecil Crowson, Jr.
DONAL CAMPBELL, et al,                    )                             Appellate C ourt Clerk
                                          )
             Defendants/Appellees.        )


             APPEAL FROM THE CIRCUIT COURT OF LAKE COUNTY
                       AT TIPTONVILLE, TENNESSEE
                THE HONORABLE R. LEE MOORE, JR., JUDGE




ANTONIO SWEATT, pro se
Only, Tennessee


PAUL G. SUMMERS
Attorney General and Reporter
MICHAEL MOORE
Solicitor General
PAMELA S. LORCH
Assistant Attorney General
Nashville, Tennessee
Attorney for Appellees




AFFIRMED




                                                               ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.


      Antonio Sweatt, a pro se inmate, has appealed the trial court’s dismissal of this civil
rights action that was brought against several individually named Tennessee Department

of Correction (TDOC) employees. Based upon the following, we affirm the trial court’s

dismissal.



                                    Facts and Procedural History



        On February 12, 1998, Sweatt filed a complaint against Donal Campbell, Fred

Raney, James Dukes, Steven E. Gatlin, Pamela Blakley, and C.O. Minnick (hereafter

collectively referred to as the “Defendants”), naming all Defendants in their individual

capacities. Campbell was alleged to be the TDOC Commissioner, and the remaining

defendants were alleged to be TDOC employees who worked at the TDOC’s Northwest

Correctional Complex, located in Tiptonville, Lake County, Tennessee. Raney was the

Warden; Dukes was the Associate Warden of Operations; Gatlin was an administrative

lieutenant; Blakley was a correctional officer and the mail room clerk; and Minnick was a

correctional officer.



        Sweatt’s action was based upon federal claims of civil rights violations. The claims

were brought under sections 1983, 1985(3), and 1986 of Title 42 of the United States

Code, based upon alleged deprivations of civil rights,1 conspiracies to interfere with civil

rights,2 and neglect to prevent conspiracies.3 The civil rights that were alleged to have


1.      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any
        State . . . , 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 Con stitutio n and laws , sha ll be liable to the party injured in an action at law,
        suit in equity, or oth er prope r procee ding for re dress. . . . .

42 U.S.C. § 1983 (1994 ).

2.      If two or m ore pers ons in an y State . . . conspire . . . for the purpose of depriving, either
        direc tly or indirectly, any person or class of persons of the equal protection of the laws, or of
        equal privileges and immunities under the laws, or for the purpose of preventing or hindering
        the constituted authorities of any State . . . from giving or securing to all persons within such
        State . . . the equal protection of the laws; . . . [and] if one or more pers ons enga ged there in
        do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby
        another is injured in his person or prop erty, or deprived of having and exercising any right or
        privilege of a citizen of the United States, the party so injured or deprived may have an action
        for the recovery of damage s, occasioned by such injury or deprivation, against any one or
        more of the conspirators.

42 U.S.C.S. § 1985(3) (1989 ).

3.      Every person who, having knowledge that any of the wrongs conspired to be done, and
        mentioned in the preceding section, are about to be committed, and having power to prevent
        or aid in preventing the comm ission of the same, neglects or refuses so to do, if such

                                                        2
been violated included Sweatt’s right to adequate, effective, and meaningful access to the

courts, his First Amendment right to petition the government for a redress of grievances

(without retaliation), and purported state statutory rights.



        According to Sweatt’s original complaint, along with its attached exhibits, two

separate prison facilities, formerly named the Lake County Regional Correctional Facility

and the Northwest Correctional Center, were consolidated and renamed as the Northwest

Correctional Complex. Prior to consolidation, the facility in which Sweatt was imprisoned

had its own mail room. After consolidation and effective January 20, 1998, however, all

mail room services were consolidated to a restricted area in a separate administration

building. Sweatt’s complaint alleged that the prison’s mailing policies and procedures that

were in effect subsequent to this consolidation, combined with certain actions (or inactions)

taken by the Defendants, interfered with his access to the courts, and that the mail

procedures “perhaps could cause [Sweatt] to lose his pending cases” due to mailing

delays.



        Sweatt alleged that official TDOC policies and procedures provided for the mailing

of outgoing “legal mail” from indigent inmates, whereby the institution paid for the costs of

postage upon the execution of a “personal withdrawal request” by the inmate (so that the

funds could be removed from his trust account when the funds became available). He

further alleged that he is an indigent inmate who is entitled to the costs of postage for legal

mail upon the execution of a personal withdrawal request. According to his complaint,

some conflict arose either from the TDOC’s policies and procedures or from the

implementation of these policies such that the Defendants denied Sweatt the costs of

postage for legal mail. More specifically, he alleged that the Defendants denied Sweatt the

costs of postage for documents that were required to be “served upon each of the parties”

under Tennessee Rule of Civil Procedure 5 in either this lawsuit or other lawsuits. He

explained that certain legal mail had been characterized as “privileged mail,” and that he


        wrongful act be co mm itted, shall be liab le to the par ty injured . . . for all damages caused by
        such w rongfu l act, which s uch pe rson by re asona ble diligence could ha ve preve nted . . . .

42 U.S.C.S. § 1986 (198 9).

                                                        3
had been required to pay the postage of such privileged mail without the benefit of

executing a personal withdrawal request. He does not allege, however, that he was ever

prevented from mailing or unable to mail legal mail as a result of the Defendants’ actions.

He simply maintains that the Defendants’ actions, which caused mailing delays, “could

cause” his lawsuit(s) to be dismissed.



         His original complaint simply sought injunctive relief from future violations of his civil

rights, asserting that such injunctive relief “could stop confusion,” and he did not assert any

claim for damages. However, on March 23, 1998, Sweatt filed a motion for leave to file an

amended complaint, which was later granted by the trial court, along with a copy of the

amended complaint. The amended complaint asserted additional claims for relief against

each of the Defendants, though it still simply maintained that the alleged conduct and

procedures “could” detrimentally affect his pending lawsuits. In addition to the injunctive

relief that was sought in the original complaint, the amended complaint also sought a

declaratory judgment that Sweatt’s rights had been violated, compensatory damages for

mental or emotional injury, and punitive damages.



         In April 1998, the Defendants moved for the dismissal of Sweatt’s action. They

asserted that Sweatt’s complaint should be dismissed based upon a failure to comply with

Tennessee Code Annotated sections 41-21-801 et seq.,4 and that Sweatt’s complaint failed

to state a claim upon which relief can be granted. Subsequently, Sweatt filed a motion for

continuance, seeking time to conduct discovery. Moreover, Sweatt later filed another

related motion, which he titled “Motion for Extension of Time for the Completion of

Requested Discovery from Defendants.” On July 6, 1998, the trial court entered an order

that granted Sweatt’s motion to amend his complaint, denied Sweatt’s motion(s) for

continuance to allow discovery, and granted the Defendants’ motion to dismiss. On

appeal, Sweatt asserts that the trial court erred by not affording him additional time to

conduct discovery, and that the trial court erred in dismissing his action.



4. Tennessee Code Ann otate d title 4 1, ch apte r 21, p art 8, w hich is titled “Laws uits by Inm ates,” pe rtains to
claim s brough t by inmate s “in which an affida vit of inability to pay cos ts is filed with the claim by the inm ate.”
See Tenn. Code A nn. § 41-21-802 (1997).

                                                           4
                                           Analysis



                               A. Continuance and Discovery



         In this case, Tennessee Code Annotated section 41-21-804(d) required the trial

court to suspend all discovery upon the filing of a motion to dismiss asserting that a claim

is frivolous or malicious. Tenn. Code Ann. § 41-21-804 (1997). Section 41-21-804 sets

forth three factors for courts to consider in determining whether a claim is frivolous or

malicious. These factors are “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.” Tenn. Code Ann. § 41-21-804(b) (1997). Because Defendants’ motion to dismiss

was based, in part, upon the assertion that Sweatt’s claim had no basis in law and in fact

(i.e., that Sweatt failed to state a claim upon which relief can be granted), the motion to

dismiss amounted to one that asserted Sweatt’s claim to be frivolous or malicious.

Accordingly, the trial court was required to suspend all discovery, and this issue has no

merit.



                           B. Dismissal / Exhaustion of Remedies



         Tennessee Code Annotated section 41-21-806(a) sets forth the following

requirement in lawsuits filed by inmates:

         An inmate who files a claim that is subject to review by the grievance
         committee established by the department shall file with the court an affidavit
         stating the date that the grievance was filed and the date the final decision
         was received by the inmate with a copy of the final decision from the
         grievance committee.

Tenn. Code Ann. § 41-21-806(a) (1997). The trial court’s order granting dismissal states

that, while Sweatt filed an affidavit for the intended purpose of satisfying section 41-21-

806(a), he failed to attach a copy of the grievance committee’s final decision. The trial

court therefore dismissed Sweatt’s lawsuit based, in part, upon Sweatt’s failure to attach




                                               5
“a copy of the final decision from the grievance committee.”5 Upon review of the record

before this Court, we note that, among other documents, a form document titled “Inmate

Grievance Response” was attached to Sweatt’s affidavit. This TDOC form document

provided for: the grievance committee’s “proposed response,” which was completed and

signed; the warden’s agreement or disagreement, which was completed and signed; a

questionnaire to the grievant (Sweatt) inquiring as to whether he wished to appeal from the

warden’s response to the TDOC commissioner, which was declined and signed; and the

commissioner’s response, if appropriate, which was not completed and signed due to

Sweatt’s failure to appeal. 6



         Section 41-21-806(a), which is quoted above, serves to help ensure that all

administrative remedies have been exhausted prior to the exercise of judicial review.

However, because Sweatt’s suit is based solely upon federal claims for alleged violations

of his constitutional and/or state statutory civil rights, his action is also subject to

substantive limitations established under federal law, including a limitation on his right to

bring such an action. Section 1997e(a) of Title 42 to the United States Code, as amended

by the Prison Litigation Reform Act of 1996, establishes that “[n]o action shall be brought

with respect to prison conditions under . . . any . . . Federal law, by a prisoner confined in

any jail, prison, or other correctional facility until such administrative remedies as are

available are exhausted.” 42 U.S.C.S. § 1997e(a) (Supp. 1998) (emphasis added). “In




5. The trial court’s order stated the following:

         [Sweatt] also filed on March 23, 1998, “Separ ate Affidavit Under Tennessee Code Annotated
         § 41-21-806 . . . . He indicates that a copy of the grievance committee’s final decision was
         attached to the affidavit. The Court finds that a copy of his grievance along with the response
         [sic] the prison officials and a copy of the minutes were attache d. There is, however, no copy
         of the griev ance c omm ittee’s final dec ision attach ed to the a ffidavit. . . . .
                   This claim is also dismissed as [Swea tt] has failed to file the final decision of the
         grievance committee. The Court is unaware of whether or not all administrative procedures
         have been exhausted because the Court does not have before it a final decision of the
         grievance committee. Although, [Sweatt] spends a lot of time dealing with the grievance,
         [Sweatt] finally states that his grievance was upheld by the grievance committee.




6. The Inmate Grievance Response stated that the Grievance Committee recognized that the Federal Rules
of Civil Procedure require service upon parties, which would make any such d ocum ents “legal mail,” and that
the comm ittee found the definitions of “legal mail” and “privileged mail” as defined in TDOC policies to be
am big uous. The document then indicated that the Warden disagreed with the committee’s proposed
resp ons e bec aus e the “cur rent p roce dure s do n ot pro hibit a nyon e fro m s end ing m ail to anyone they desire
for any reason.” Thereafter, the document inquired as to whether Sweatt wished to appeal the W ard en ’s
unfavorable response. Sweatt declined and affixed his signature to his response.

                                                          6
light of the plain mandatory language of the statute regarding exhaustion of remedies, the

legislative purpose underlying the plain language, and the sound policy on which it is

based, . . . prisoners filing . . . cases involving prison conditions must allege and show that

they have exhausted all available state administrative remedies.” Brown v. Toombs, 139

F.3d 1102, 1104 (6th Cir. 1998) (emphasis added). See also White v. McGinnis, 131 F.3d

593 (6th Cir. 1997) (holding that a district court’s sua sponte dismissal of a prisoner’s civil

rights suit, which sought declaratory and injunctive relief and compensatory and punitive

damages against several individual defendants, was proper where the prisoner filed an

administrative grievance regarding his claims, but did not pursue an administrative appeal

of the denial of the grievance). In the instant case, Sweatt’s own affidavit, with its attached

Inmate Grievance Response, indicates that Sweatt failed to exhaust all available state

administrative remedies, because he had been afforded the opportunity to appeal the

Warden’s unfavorable response to the TDOC’s commissioner, yet failed to do so.

Therefore, the dismissal of Sweatt’s action was proper, and we pretermit further analysis

of other issues addressed by the parties relating to dismissal.




                                        Conclusion



       Accordingly, we affirm the trial Courts dismissal. Costs of this appeal are taxed

against Antonio Sweatt.



                                                          HIGHERS, J.




                                              7
CONCUR:




FARMER, J.




LILLARD, J.




              8
