On May 27, 2003, the Tennessee Court of Appeals reversed an order
dismissing for failure to prosecute a prisoner's pro se lawsuit against
the state.

State prisoner Russell Wellington claimed that while imprisoned at the
Riverbend Maximum Security Correctional Facility he was beaten, sprayed
with pepper gas, left outside in cold weather for over an hour, and then
denied medical treatment for his injuries. Arguing that the state had
violated its duty of care, Wellington sought $15,000 in damages: $3,000
against each of the named defendants and $3,000 against the state. On
February 18, 1998, Wellington petitioned the Claims Commission to transfer
the matter to the Davidson County Chancery Court, where he had a pending
case arising from the same set of facts. His request was denied by the
Claims Commissioner.

Wellington's claim was heard by an administrative law judge (ALJ) on
October 27, 2000. The ALJ determined that the state had failed to provide
Wellington timely medical care and awarded him $3,000 in damages. The
state moved to transfer the matter to the Davidson County Circuit Court,
and Wellington opposed the transfer.

On January 4, 2001 the ALJ vacated her prior award to Wellington and
transferred the entire matter to the Davidson County Circuit Court. Two
months later the circuit court notified Wellington that his case "would be
dismissed for failure to prosecute if he failed either to file a motion to
set the matter for trial within thirty days or seek permission to be
exempted from the one (1) year rule." Wellington filed no response, and on
April 7, 2002 the circuit court dismissed his claim. Wellington appealed,
asserting that the matter had been consolidated with the existing circuit
court action and that the case was not "dormant." Wellington specifically
argued that his motion for summary judgment had been pending for over a
year in the other case and that "if there is a lack of prosecution it
certainly is not on the behalf of the plaintiff."

On appeal, the state contended that the two cases had not been
consolidated, despite the fact that the state had requested the transfer
for the express purpose of consolidation. The appeals court noted
that, "The record does not reflect that a motion to consolidate was filed,
and the state's position in this appeal implies that it was not filed."
Based on this, the appellate court concluded, "Because it was the
obligation of the state to seek consolidation, as it represented to the
Commission would happen ... any lack of action in the transferred lawsuit
was attributable to the state, not to Mr. Wellington." The appeals court
further noted that on remand, Wellington should be given the opportunity
to move for dismissal based on the ground that "the Commission lacked
authority to transfer his claim after a decision on the merits under the
small claims docket rules." This case was not published in S.W.3d. See:
Wellington v. State, Case No. M2002-01090-COA-R3-CV (Tenn. Ct. App. 2003).

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