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Givler v. State

Court of Appeals of Tennessee, Knoxville

March 29, 2018


          Assigned on Briefs December 4, 2017

          Appeal from the Tennessee Claims Commission No. T20170894 William O. Shults, Commissioner

         This case originated when the plaintiff, who was incarcerated in the Tennessee Department of Correction facility at Mountain City, Tennessee, filed a claim against the State of Tennessee ("the State"), alleging that medical professionals at the correctional facility had provided him with untimely and inadequate medical care for a serious heart condition. Finding that the plaintiff's allegations concerned individuals who were not employed by the State, the Claims Commission ("Commission") initially dismissed the claim for lack of subject matter jurisdiction. The plaintiff subsequently attempted to file a proposed amendment naming State employees as defendants and then a second claim, resulting in the instant action. The State filed a motion to dismiss, asserting the defense of res judicata. Finding that the plaintiff had misnumbered his proposed amendment to the original claim, the Commission treated the proposed amendment and second claim together as an amended claim. Ultimately determining that the plaintiff had alleged a health care liability action but failed to comply with the statutory prerequisites for such a suit and that he had failed to establish the Commission's jurisdiction over intentional or criminal acts allegedly committed by State employees, the Commission entered a final order dismissing the action. The plaintiff has appealed. Determining that the plaintiff has failed to comply with Tennessee Rule of Appellate Procedure 27 and Tennessee Court of Appeals Rule 6, we dismiss this appeal.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

          Mark W. Givler, Mountain City, Tennessee, Pro Se.

          Herbert H. Slatery, III, Attorney General and Reporter; Andrée Blumstein, Solicitor General; and Pamela S. Lorch, Senior Counsel, for the appellee, State of Tennessee.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which Richard H. Dinkins, J., and J. Steven Stafford, P.J., W.S., joined.



         The plaintiff, Mark W. Givler, initially filed a complaint in January 2015 with what was then the Tennessee Division of Claims Administration ("DCA"), which subsequently transferred the complaint to the Commission, pursuant to Tennessee Code Annotated § 9-8-402(c) (2012).[2] Mr. Givler alleged that while incarcerated, he had received inadequate and untimely medical care for months leading up to his eventual hospitalization and surgical procedure for a serious heart condition in September 2015. Upon the State's motion to dismiss, the Commission entered an order dismissing the initial claim on July 7, 2016, finding that the Commission did not have subject matter jurisdiction over the claim because Mr. Givler had alleged claims of professional negligence against medical personnel who were employees of a contractor and not employees of the State. See Tenn. Code Ann. § 9-8-307(a)(1)(D) (2012 & Supp. 2017) (setting forth the jurisdiction of the Commission in claims of professional malpractice over the acts or omissions of state employees); Younger v. State, 205 S.W.3d 494, 499 (Tenn. Ct. App. 2006), perm. app. denied (Tenn. July 3, 2006) ("[T]he proper defendant for negligence claims arising from the action of private contractors, or their employees, in operating correctional facilities is the contractor, and not the State.").

         Mr. Givler filed the instant complaint on December 7, 2016, with the DCA, and it was transferred to the Commission on March 7, 2017. The Commission subsequently received Mr. Givler's proposed amendment to the complaint on March 31, 2017. In ultimately granting Mr. Givler's motion to amend the complaint, the Commission summarized Mr. Givler's allegations and the relevant and somewhat convoluted procedural history as follows:

The claim primarily involves Mr. Givler's allegations that because of negligent actions or inactions on the part of State employees, he did not receive timely and adequate treatment for a serious heart disorder. [Mr. Givler] alleged that because of the State's negligence, he underwent a complicated heart procedure[] carried out at the Johnson City Medical Center on September 25, 2015. Mr. Givler alleges that the whole experience has caused him both physical and mental injuries.
The allegations dealt with here have been complicated by [Mr. Givler] himself by the misnumbering of an amendment he attempted to make in Claim No. T20150969 which the Commission dismissed per an Order signed by us on July 1, 2016. The basis of that dismissal was that allegations of healthcare liability which [Mr. Givler] made in that case were not jurisdictionally proper before the Commission since the medical professionals [Mr. Givler] named in that action were not State employees.
However, [Mr. Givler] candidly admits that a proposed amendment he attempted to make in claim No. T20150969, i.e. No. T20160969, was misnumbered, and in fact there never was and never has been a Claim No. T20160969. In fact, Mr. Givler characterizes that numeration as creating a "ghost claim." Rather he explains, his proposed amendment in Claim No. T20160969 should have been filed in Claim No. T20150969 and consequently, the Commission has never ruled on the allegations he proposed to make against the following State employees at NECX [Northeast Correctional Complex] at the time of the State's alleged negligence: 1) Warden Gerald McAllister; 2) Assistant Warden Todd Wiggins; 3) Ms. Georgia Crowell, Administrator, Medical Department at NECX; and 4) Sergeant Douthitt, Grievance Chairperson at the time. A fourth category is denominated "et al." but no individuals are named in that category.
The Commission notes that our Order Dismissing Claim of July, 2016, was filed in Claim No. T20150969. However, Mr. Givler's misnumbering of the amendments he proposed to make in that case confused him and even the Office of the Attorney General.
In an attempt to bring before us the allegations against the individuals named above, Mr. Givler, on December 7, 2016, filed the matter now before the Commission. That claim has been given the number T20170894. The claim is directed at alleged negligent actions or inactions committed by the State employees named above.
In response to [Mr. Givler's] most recent filing, the State has lodged with us a Motion to Dismiss along with a supporting Memorandum of Law. In its Motion, the State relies primarily on the doctrine of res judicata and contends that Mr. Givler's most recent claim fails to allege a matter upon which relief can be granted, and therefore it must be dismissed under Tenn. R. Civ. P. 12.02(6). The State argues that the facts set out in this most recent claim mirror almost exactly the allegations made in Claim No. T20160969 (sic). Of course, in light of the ...

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