MARK W. GIVLER
STATE OF TENNESSEE
Assigned on Briefs December 4, 2017
from the Tennessee Claims Commission No. T20170894 William O.
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.
R. App. P. 3 Appeal as of Right; Appeal Dismissed
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.
R. Frierson, II, J., delivered the opinion of the court, in
which Richard H. Dinkins, J., and J. Steven Stafford, P.J.,
MEMORANDUM OPINION 
R. FRIERSON, II, JUDGE
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). 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.").
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
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
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