                      IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON
                                  Assigned On Brief September 6, 2001

 JOSEPH CARL PIERCE, SR., ET AL. v. CORRECTIONS CORPORATION
                     OF AMERICA, ET AL.

                      Direct Appeal from the Circuit Court for Hardeman County
                               No. 9295    Jon Kerry Blackwood, Judge



                        No. W2001-00595-COA-R3-CV - Filed January 17, 2002


This is an appeal from an order of the trial court granting a motion to dismiss the complaint for
failure to state a claim upon which relief can be granted. We reverse in part and affirm in part.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in part;
                            Reversed in part; and Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY K. LILLARD , J., joined.

Joseph Carl Pierce, Sr., Pro Se.

Tom Anderson, Jackson, Tennessee, for the appellees, Corrections Corporation of America, Prison
Management Services, Inc, Prison Realty Trust, Inc. and Correctional Management Services
Corporation.

                                          MEMORANDUM OPINION1

       A complaint was filed in this cause on July 25, 2000. On September 8, 2000, a motion to
dismiss was filed in behalf of Defendants, Corrections Corporation of America (CCA), Prison
Management Services, Inc. (PMSI), Prison Realty Trust, Inc. (PRT) and Correctional Management
Services Corporation (CMSC).2 An amended complaint was filed January 25, 2001.


        1
          RULE 10. MEMORANDUM OPINION. The Court, with the concurrence of all jud ges p articipa ting in
the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion
wo uld have no precedential value. When a case is decided by memorandum op inion 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“MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any reason in any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.
        2
            No respo nse is included in the record for any of the other Defendants and there is no indication that any of
                                                                                                           (con tinued...)
        The trial court entered an order granting the motion to dismiss for failure to state a claim
upon which relief could be granted pursuant to Rule 12.02(6) Tenn. R. Civ. P. We perceive the issue
to be simply whether or not the trial court erred in granting the motion to dismiss.

        Before addressing the merits of this appeal, we feel that it is necessary to determine the
proper Plaintiff or Plaintiffs. The complaint was signed by Joseph Carl Pierce, Sr. Below the
signature blank he identified himself as “Plaintiffs’ Spokesperson.” The complaint identifies Mr.
Pierce as residing at the Whiteville Correctional Facility in Hardeman County, Tennessee, after
having been convicted of a crime in the State of Wisconsin and sentenced to a term of 23 years. The
complaint also identifies Mr. Pierce as a “jail-house lawyer.” Furthermore, a complaint signed by
an attorney must include the signer’s Tennessee Board of Professional Responsibility number. See
Tenn. R. Civ. P. 11.01. Therefore, we conclude from this record that Mr. Pierce is not an attorney
and therefore cannot properly represent the remaining named Plaintiffs. Furthermore, the Notice of
Appeal was signed solely by Joseph Carl Pierce, Sr., albeit as “Plaintiffs’ Spokesperson.” Therefore,
we will review this action only with respect to Plaintiff Joseph Carl Pierce, Sr.

         A motion to dismiss a complaint for failure to state a claim upon which relief can be granted
tests the legal sufficiency of the complaint. It admits the truth of all relevant and material allegations
but asserts that such allegations do not constitute a cause of action as a matter of law. See Riggs v.
Burson, 941 S.W.2d 44, 47 (Tenn. 1997). However, “inferences to be drawn from the facts or the
legal conclusions set forth in a complaint are not required to be taken as true.” Id. at 48 (citing Dobb
v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992). Obviously, when considering a motion
to dismiss for failure to state a claim upon which relief can be granted, we are limited to the
examination of the complaint alone. See Wolcotts Fin. Serv., Inc. v. McReynolds, 807 S.W.2d 708
(Tenn. Ct. App. 1990). The basis for the motion is that the allegations in the complaint considered
alone and taken as true are insufficient to state a claim as a matter of law. See Cornpropst v. Sloan,
528 S.W.2d 188 (Tenn. 1975). In considering such a motion, the court should construe the
complaint liberally in favor of the plaintiff, taking all the allegations of fact therein as true. See
Cook Uithoven v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934 (Tenn. 1994). The motion
should be denied unless it appears that the plaintiff can establish no facts supporting the claim that
would warrant relief. See Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 1999).

       The complaint describes Mr. Pierce as residing at the Whiteville Correctional Facility (WCF)
in Hardeman County, Tennessee. After having been convicted in a criminal case in the State of
Wisconsin, he was sentenced on or about November 5, 1991, to a term of 23 years.

        Defendant CCA is identified as a Tennessee Corporation authorized to do business in the
states of Tennessee and Wisconsin. Defendant PRT is identified as a corporation organized under
the laws of the State of Maryland and CMSC as a Tennessee corporation. Each of the latter are


         2
           (...continued)
them were served with process. Therefore, we will conside r only the allegations as to the Defendants which filed the
mo tion to dism iss.

                                                        -2-
alleged to be authorized to do business in the states of Tennessee and Wisconsin. Defendant PMSI
is identified as a Tennessee corporation.

       Several numerical paragraphs of the complaint state the corporate structures of various
Defendants including mergers and leases among them, as well as allegations of political
contributions, none of which appear to state a claim which would entitle Mr. Pierce to relief.

       The complaint also contains allegations of abusive conduct by CCA staff at facilities located
at Youngstown, Ohio and Columbia, South Carolina. However, there are no allegations that Mr.
Pierce was ever incarcerated at either of those facilities or suffered any injury as a result of the
alleged acts of the Defendants at those facilities.

         It is the position of the appellees that “Plaintiffs filed their complaint seeking to be released
from custody.” Therefore, they argue that the complaint is in reality a petition for writ of habeas
corpus. It is true that a portion of the relief sought in the complaint is release from confinement.
However, as we will explain further that is only a portion of the relief sought. Insofar as the
complaint can be construed as seeking habeas corpus relief, it is well established that habeas corpus
relief for a person incarcerated as a result of having been convicted of a crime is limited and
available in Tennessee only when the face of the judgment or the record of the proceedings upon
which the judgment is rendered reveals that the convicting court was without jurisdiction or authority
over the appellant or that appellant’s sentence of imprisonment has expired. See Hart v. State, 21
S.W.3d 901, 903 (Tenn. 2000); Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Passarella v.
State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). If, from the face of the petition the reviewing
court finds nothing to indicate that the appellant’s challenged convictions might be void or not
entitled to any relief, the court shall dismiss the petition and refuse the issuance of the writ. Tenn.
Code Ann. § 29-21-109 (1980). Habeas corpus proceedings are essentially civil in nature and the
rules of civil procedure are applicable where consistent with Tenn. Code Ann. § 29-21-101 et. seq.
Tenn. R. Civ. P. 12 provides trial courts the authority to dismiss pleadings which fail to state a claim
upon which relief may be granted. It is clear that Plaintiff is not entitled to this relief. As heretofore
stated, the complaint alleges that Mr. Pierce was sentenced in the State of Wisconsin on or about
November 5, 1991 to a term of 23 years. There is no allegation that his sentence has expired or that
the convicting court in Wisconsin was without jurisdiction or authority over him.

        Appellees have not addressed the remaining allegations of the complaint. A motion to
dismiss for failure to state a claim upon which relief can be granted admits the truth of all relevant
and material allegations but asserts that such allegations do not constitute a cause of action as a
matter of law. In considering such a motion, we are to construe the complaint liberally in favor of
the plaintiff. Applying this liberal interpretation, in reviewing the complaint and amended complaint
we will construe allegations concerning Plaintiffs and inmates to include Mr. Pierce.

       Insofar as the complaint challenges the validity of a contract between the State of Wisconsin
Department of Corrections and CCA, we believe that the State of Wisconsin would be a necessary
and indispensable party to such an action. See 67A C.J.S. Parties §§ 4, 53(a).


                                                   -3-
        It is further alleged that the complainant was deprived of due process. An inmate does not
have a constitutional right to be assigned to a particular penal institution. See Olim v. Wakinekona,
461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Montanye v. Haymes,
427 U.S. 236, 243 (1976); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Newell v. Brown, 981F.2d
880, 883 (6th Cir. 1993); Beard v. Livesay, 798 F.2d 874, 876 (6th Cir. 1986).

        The complaint alleges that CCA maintains a policy which allows inappropriate use of
electrical shocking devices, kicking and beating inmates, spraying inmates with mace for the sole
purpose of imposing pain and other abusive acts. It is also alleged that inmates were deprived of
drinking water for over 36 hours during a lock down and were deprived of bathing water, water to
flush their toilets for a period in excess of 72 hours and failure to provide medical care. The
complaint further alleges that CCA was negligent in failing to properly supervise and train its
employees. The complaint alleges that the correctional facility requires residents to use the facility’s
laundry service but intentionally causes their clothing to be damaged. The complaint seeks
compensatory and punitive damages. We believe the allegations set forth above constitute a claim
upon which relief may be granted. This opinion is not to be interpreted as any indication by this
Court as to the merits of the allegations but our holding is merely that the allegations heretofore set
forth state a justiciable claim.

        We note that Appellees’ brief contains the following:

                 In reviewing whether the evidence supports the Order, the courts follows “.
        . . the traditional rule of viewing the evidence in the light most favorable to the
        prevailing party.” Coal Resources, Inc. v. Gulf & Western Industries, Inc., 865
        F.2d 761, 767 (6th Cir. 1981), amended, 877 F.2d 5 (6th Cir. 1989); Calhoun v.
        Baylor, 646 F.2d 1158, 1160 (6th Cir. 1981). Orders of trial courts are entitled to
        considerable deference, and judgments supported by some competent, credible
        evidence going to all the essential elements will not be reversed by a reviewing court
        as against the manifest weight of the evidence. Adkins v. GAF Corp., 923 F.2d
        1225, 1232 (6th Cir. 1991). Unless the evidence so clearly favors the Appellant that
        reasonable minds could not differ, the trial court should be upheld. SEE Calhoun
        at p. 1160.

Unlike a trial on the merits or a motion for summary judgment, there is no evidence to consider in
reviewing a motion to dismiss for failure to state a claim upon which relief can be granted. This
motion simply tests the legal sufficiency of the complaint.

        The order of the trial court granting the Defendants’ motion to dismiss the complaint for
failure to state a claim upon which relief may be granted is affirmed in part, reversed in part and
remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal
are taxed one-half to the appellant, Joseph Carl Pierce, Sr., and one-half to the appellees, Corrections




                                                  -4-
Corporation of America, Prison Management Services, Inc., Prison Realty Trust, Inc., and
Correctional Management Services Corporation.



                                                ___________________________________
                                                DAVID R. FARMER, JUDGE




                                          -5-
