                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                           Assigned on Briefs October 12, 1999

WILLIAM H. HORTON v. TENNESSEE DEPT. OF CORRECTION, ET AL.

                    Appeal from the Chancery Court for Davidson County
                       No. 98-612-II   Carol L. McCoy, Chancellor


                  No. M1999-02798-COA-R3-CV - Filed September 26, 2002


This appeal involves a dispute between a prisoner and the Tennessee Department of Correction
regarding two minor Class C disciplinary infractions. After his internal appeals were denied, the
prisoner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson
County challenging three procedural aspects of the disciplinary hearings. The Department filed a
Tenn. R. Civ. P. 12.02(6) motion to dismiss the petition. Instead of directing the Department to file
the official records of the two proceedings, the trial court dismissed the prisoner’s complaint
regarding one proceeding and directed the Department to submit additional information regarding
the other proceeding. After the Department submitted additional information, the trial court, now
treating the Department’s motion as a motion for summary judgment, dismissed the remainder of
the prisoner’s complaint. The prisoner has perfected this appeal. We have determine that the trial
court properly dismissed the prisoner’s challenges to the disciplinary proceeding regarding the being
out of place infraction. However, we have determined that the prisoner has stated a claim with
regard to the Department’s compliance with Tenn. Dep’t Corr. Policy No. 9502.01(VI)(D)(2)
regarding the disrespect infraction. Therefore, we reverse the dismissal of this portion of the
prisoner’s petition and remand the case for further proceedings.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part
                                   and Vacated in Part

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN , J., joined.
PATRICIA J. COTTRELL, J., filed a concurring opinion.

William H. Horton, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; and Pamela
S. Lorch, Assistant Attorney General, for the appellee, Tennessee Department of Correction.

Tom Anderson, Jackson, Tennessee, for the appellee, Doctor R. Crants.

                                            OPINION

                                                 I.

       In November 1992, a Davidson County jury convicted William H. Horton of possessing
cocaine with the intent to resell. The trial court subsequently sentenced him to twenty-one years in
the state penitentiary.1 By 1997, Mr. Horton was an inmate in the South Central Correctional Center
in Clifton, a prison managed by Corrections Corporation of America (“CCA”) under a contract with
the State of Tennessee. Mr. Horton had two separate run-ins with prison officials during the fall of
1997. First, he addressed a correctional officer as “boy.” Later, in a separate incident, he lined up
to go to the prison commissary while a count of prisoners was being taken. Prison officials charged
him with a Class C disciplinary offense in each of these incidents.2

        A prison disciplinary board composed of CCA employees conducted separate hearings
regarding each of Mr. Horton’s offenses. With regard to the first offense, the board found Mr.
Horton guilty of disrespect and, as punishment, issued a written warning and imposed a two-month
suspension of his ability to receive packages. At the second hearing, the board found Mr. Horton
guilty of being out of place and issued him a verbal warning.3 Mr. Horton’s internal appeals to the
Assistant Commissioner for Operations and the Commissioner of Correction were unsuccessful.

        In March 1998, Mr. Horton filed a pro se petition for common-law writ of certiorari in the
Chancery Court for Davidson County challenging the legality of both disciplinary proceedings. He
named as defendants both the Tennessee Department of Correction and Doctor R. Crants, CCA’s
then chief executive officer. Both the Department and Mr. Crants moved to dismiss Mr. Horton’s
petition, but before the trial court could act on their motions, Mr. Horton moved for a default
judgment against Mr. Crants. The trial court denied Mr. Horton’s motion for default. It also
dismissed Mr. Crants as a party and dismissed the portion of the petition challenging the first
disciplinary proceeding involving the disrespect charge.

        With regard to Mr. Horton’s challenges to the being out of place charge, the trial court
dismissed all his claims except for the claim that he had been prevented from presenting his
witnesses at the hearing. On that issue, the trial court directed the Department to “submit any
necessary documents or affidavits for the court to consider.” The Department submitted an affidavit
from the chairman of the disciplinary board giving his version of why Mr. Horton was not allowed
to present his desired witness. After Mr. Horton responded, the trial court, treating the Department’s
motion as one for summary judgment, dismissed Mr. Horton’s witness claim on the ground that the
disciplinary board had acted within its discretion. This pro se appeal followed.




         1
          Mr. Ho rton’s co nviction was sub sequently affirmed on appeal. See State v. Horton, No. 01C01-9312-CR-
00435 , 1994 W L 5487 50 (Tenn. Crim. Ap p. Oct. 6, 1994) perm. app. denied (Tenn. Jan. 30, 1995 ).

         2
          Under Departm ent of C orrection administrative policies and procedures, prison rule infractions fall into three
classes: A, B, or C. C lass C o ffenses are the least serious offenses. See Tenn. Dep’t of Corr. Policy Index 502.05
(VI)(A) (2000 ).

         3
          In his appellate brief, Mr. Horton claims that the second hearing resulted in him receiving a written warning;
however, he provides no citation to the record to support that assertion. See Tenn. R. App. P. 27(g). The disciplinary
report hearing summary in the record indicates that he only received a verbal warning.

                                                           -2-
                                             II.
                                     THE RECORD ON APPEAL

        Before considering the substantive issues raised on this appeal, we note that this case is yet
another occasion where we are being asked to review the trial court’s denial of a petition for
common-law writ of certiorari. As we have recently noted, we are troubled by a procedure in which
trial courts dispose of petitions for common-law writ of certiorari when the parties have filed only
portions of the record. Livingston v. Tennessee Bd. of Paroles, No. M1999-01138-COA-R3-CV,
2001 WL 747643, at *5 (Tenn. Ct. App. July 5, 2001) (No Tenn. R. App. P. 11 application filed).
As we said in Livingston,

               [W]e have concerns about indiscriminate use of a procedure which
               involves filing portions of the administrative record for two reasons.
               First, there is the danger of confusion between the issue of whether
               the writ should be granted to compel filing of the record with the
               issue of whether relief should be granted based on the record and the
               petition. Second, the statutory procedures established for review of
               decisions of administrative boards and commissions do not appear to
               contemplate filing of only portions of the administrative record.

Livingston v. Tennessee Bd. of Paroles, 2001 WL 747643, at *7.

        This problem, while bad enough in its own right, was compounded in this proceeding
because the trial court directed the Department to “submit any necessary documents or affidavits for
the court to consider” on only one of Mr. Horton’s allegations. The trial court should have issued
the writ of certiorari directing the Department to file the official record in both of the challenged
proceedings. The end result of the procedure followed by the trial court is that we have before us
only selected portions of the disciplinary board’s record along with new materials prepared in
response to the trial court’s directions. This is no way to run a railroad. Nevertheless, to decide
whether the trial court correctly dismissed Mr. Horton’s petition, we will work with the record we
have.

                                             III.
                                    THE STANDARD OF REVIEW

        A common-law writ of certiorari is an extraordinary judicial remedy. Robinson v. Traughber,
13 S.W.3d 361, 364 (Tenn. Ct. App. 1999); Fite v. State Bd. of Paroles, 925 S.W.2d 543, 544 (Tenn.
Ct. App. 1996). It is not available as a matter of right, Boyce v. Williams, 215 Tenn. 704, 713-14,
389 S.W.2d 272, 277 (1965); Yokley v. State, 632 S.W.2d 123, 127 (Tenn. Ct. App. 1981), but rather
is addressed to the trial court's discretion. Blackmon v. Tennessee Bd. of Paroles, 29 S.W.3d 875,
878 (Tenn. Ct. App. 2000). Accordingly, decisions to grant or deny a common-law writ of certiorari
are reviewed using the familiar “abuse of discretion” standard. Robinson v. Traughber, 13 S.W.3d
at 364. Under this standard, a reviewing court should not reverse a trial court's discretionary decision
unless it is based on a misapplication of controlling legal principles or a clearly erroneous assessment
of the evidence, Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999), or unless it
affirmatively appears that the trial court's decision was against logic or reasoning, and caused an

                                                  -3-
injustice or injury to the complaining party. Marcus v. Marcus, 993 S.W.2d 596, 601 (Tenn. 1999);
Douglas v. Estate of Robertson, 876 S.W.2d 95, 97 (Tenn. 1994).

         The scope of review under a common-law writ of certiorari is extremely limited. Courts may
not (1) inquire into the intrinsic correctness of the lower tribunal's decision, Arnold v. Tennessee Bd.
of Paroles, 956 S.W.2d 478, 480 (Tenn. 1997); Powell v. Parole Eligibility Review Bd., 879 S.W.2d
871, 873 (Tenn. Ct. App. 1994), (2) reweigh the evidence, Watts v. Civil Serv. Bd., 606 S.W.2d 274,
277 (Tenn. 1980); Hoover, Inc. v. Metropolitan Bd. of Zoning Appeals, 924 S.W.2d 900, 904 (Tenn.
Ct. App. 1996), or (3) substitute their judgment for that of the lower tribunal. 421 Corp. v.
Metropolitan Gov't, 36 S.W.3d 469, 474 (Tenn. Ct. App. 2000). Rather, the writ permits the courts
to examine the lower tribunal's decision to determine whether the tribunal exceeded its jurisdiction
or acted illegally, fraudulently, or arbitrarily. Turner v. Tennessee Bd. of Paroles, 993 S.W.2d 78,
80 (Tenn. Ct. App. 1999); Daniels v. Traughber, 984 S.W.2d 918, 924 (Tenn. Ct. App. 1998).

                                                  IV.
                                THE CLAIMS AGAINST MR . CRANTS

       Beyond his substantive challenges to the disciplinary proceedings, Mr. Horton takes issue
with the trial court’s denial of his motion for default judgment against Mr. Crants and its decision
to dismiss Mr. Crants as an improper party to the suit. We need not tarry long with these procedural
matters.

                                                  A.

        Default judgments are not favored by the courts. Coin Automatic Co. v. Estate of Dixon, 213
Tenn. 311, 321, 375 S.W.2d 858, 862 (1963); Nelson v. Simpson, 826 S.W.2d 483, 485-86 (Tenn.
Ct. App. 1991). Aside from instances when default judgments are available as a sanction, default
judgments are only appropriate when a defendant fails to plead or otherwise defend against the suit
as provided in the rules of procedure. Tenn. R. Civ. P. 55.01. While a defendant may always answer
a complaint, a defendant may also defend against a suit by seeking to have a complaint dismissed
on one or more of the grounds set out in Tenn. R. Civ. P. 12.02. A defendant raising defenses listed
in Rule 12.02 may do so by filing a motion prior to answering the complaint. Filing a proper motion
to dismiss constitutes “otherwise defend[ing]” against a lawsuit as contemplated in Rule 55.01,
making a default judgment improper. Rudnicki v. Sullivan, 189 F. Supp. 714, 715 (D. Mass. 1960);
Howse v. Johnson, No. M1998-00513-COA-R3-CV, 2000 WL 758469, at *3 (Tenn. Ct. App. June
13, 2000) (No Tenn. R. App. P. 11 application filed).

       In this case, Mr. Crants filed a motion to dismiss Mr. Horton’s complaint for failure to state
a claim for which relief can be granted. That motion was on file and pending when Mr. Horton
moved for a default judgment. Because Mr. Crants had appeared and interposed a recognized
defense to the complaint by the time Mr. Horton sought a default judgment, the trial court correctly
denied Mr. Horton’s motion.




                                                  -4-
                                                            B.

       Mr. Horton also insists that Mr. Crants is a proper party to this proceeding. He asserts that
Mr. Crants and CCA played an unlawful role in disciplining him by conducting “a Kangaroo type
court process . . . [and] then, upon completion of said performance send the results to the
[Department], who then rubber stamp[s] the actions of the CCA staff . . ..” However, Mr. Crants
does not become a necessary party simply because CCA employees conducted the disciplinary
proceeding.


         The proper parties to a lawsuit are those who have legal or equitable rights in the subject of
the litigation. Steele v. Satterfield, 148 Tenn. 649, 654, 257 S.W. 413, 414 (1923); William H.
Inman, Gibson’s Suits in Chancery § 51 (7th ed. 1988) (“Gibson’s Suits in Chancery”).4 To be a
proper party, a person should be so connected with the dispute as to be under an enforceable
obligation to the plaintiff or should have some right or position with regard to the subject of the
litigation that would entitle him to defend against any judgment the court may give. Gibson’s Suits
in Chancery § 53. A person is not a proper party if he or she has no interest at stake in the lawsuit
and cannot be affected by any decision. At the motion to dismiss stage, decisions regarding who is
a proper party must be determined from the allegations of the complaint. Goss v. Hutchins, 751
S.W.2d 821, 824-25 (Tenn. 1988).

        The basic procedural framework governing petitions for a common-law writ of certiorari is
set out in Tenn. Code Ann. § 27-9-101, -114 (2000). Fentress County Beer Bd. v. Cravens, 209
Tenn. 679, 685-86, 356 S.W.2d 260, 263 (1962); Levy v. Board of Zoning Appeals, No. M1999-
00126-COA-R3-CV, 2001 WL 1141351, at *4 (Tenn. Ct. App. Sept. 27, 2001) (No Tenn. R. App.
P. 11 application filed). Tenn. Code Ann. § 27-9-104 specifically deals with the proper parties
defendant in these proceedings. It provides that the petitioner “shall name as defendants the
particular board . . . and such other parties of record, if such, as were involved in the hearing before
the board or commission, and who do not join as petitioners.” In addition to the board itself, the
proper parties to a certiorari proceeding are the individuals or entitles who were parties to the dispute
at the board level. Levy v. Board of Zoning Appeals, 2001 WL 1141351 at *5.

        In this case, Mr. Crants was not personally involved in either of Mr. Horton’s disciplinary
hearings. He has no personal rights at stake in the claims made by Mr. Horton concerning those
hearings. His only connection to this case is that he is chief executive officer of the private
corporation that manages the South Central Correctional Center. That does not make him a proper
party to Mr. Horton’s petition. It is well-settled that no CCA employee has freestanding power to
take disciplinary actions against state prisoners. The discipline of prisoners is a non-delegable duty
of the State. Tenn. Code Ann. § 41-24-110 (1997). Though the prison disciplinary board at South
Central Correctional Center is comprised of CCA employees, those individuals only recommend
punishment. Actual discipline is not imposed until a representative of the Department reviews and


         4
            A proper party is not necessarily a necessary or indispensable party for the purposes of Tenn. R. Civ. P. 19.01.
A person become s a necessary or indispensable party only if he or she will be directly affected by the decree and whose
interest is not represented by any o ther pa rty to the litigatio n. Gilley v. Jernigan, 597 S.W.2d 313, 318 (Tenn. Ct. App.
197 9).

                                                            -5-
approves the board’s recommendation. Mandela v. Campbell 978 S.W.2d 531, 533 (Tenn. 1998).
As we have recently held, it follows from this arrangement that a petition for certiorari directed at
one or more CCA employees over a matter of prison discipline fails to state a claim for relief. The
proper party defendant in such cases is the Department, as the responsible governmental agency.
Wilson v. South Cent. Corr. Facility Disciplinary Bd., No. M2000-00303-COA-RM-CV, 2000 WL
1425228, at *6 (Tenn. Ct. App. Sept. 28, 2000) (No Tenn. R. App. P. 11 application filed); Turner
v. Campbell, 15 S.W.3d 466, 468 (Tenn. Ct. App. 1999). For this reason we find that the chancery
court did not err in dismissing Mr. Horton’s complaint against Mr. Crants.

                                               V.
                                 THE DISCIPLINARY PROCEEDINGS

        Mr. Horton takes issue with three aspects of the disciplinary proceedings. With regard to the
hearing on the disrespect charge, he complains that the disciplinary board convicted him without
requiring the reporting officer to appear and testify. With regard to the hearing on the charge of
being out of place, he asserts that the disciplinary board acted arbitrarily and illegally by refusing to
permit him to call a staff member as a witness. Finally, with regard to both hearings, he claims that
the proceedings were defective because the “Commissioner’s Designee” did not approve the
disciplinary board’s recommended discipline.

                                              A.
                             Mr. Horton’s Inability to Call a Witness

        Prisoners do not have an unqualified right to call witnesses at disciplinary hearings. They
should be allowed to call witnesses and present documentary evidence in their defense but only as
long as doing so will not be unduly hazardous to either institutional safety or other valid correctional
goals. Accordingly, prison officials may, in their discretion, control a prisoner’s right to call
witnesses to assure that the prisoner does not threaten institutional safety or undermine institutional
goals. Wolff v. McDonnell, 418 U.S. 539, 566, 94 S. Ct. 2963, 2979-80 (1974); Davis v. Campbell,
No. 01A01-9712-CH-00755, 1998 WL 812533, at *3 (Tenn. Ct. App. Nov. 25, 1998) (No Tenn. R.
App. P. 11 application filed).

        The Department’s Uniform Disciplinary Procedures balance a prisoner’s interest in
presenting witnesses in his defense and the institution’s interest in maintaining discipline and order.
Prisoners may present the testimony of relevant witnesses unless requiring the witness to appear will
pose a threat to institutional order. Tenn. Dep’t Corr. Policy No. 9502.01(VI)(D)(3)(c)(6) (1995).
However, prisoners desiring to call another prisoner or a member of the prison staff as a witness
must complete an “inmate witness request” form and submit it to the chairperson of the disciplinary
board at least twenty-four hours prior to the hearing. Tenn. Dep’t Corr. Policy No.
9502.01(VI)(D)(3) (d)(1). The board chair may excuse a prisoner’s failure to comply with this rule
after taking into consideration the nature of the proposed witness’s testimony and the difficulty to
obtain the witness’s presence at the hearing. Tenn. Dep’t Corr. Policy No. 9502.01(VI)(D)(3)(d)(2).
Prisoners who are not permitted to call a particular witness may present the witness’s written
statement instead. Tenn. Dept. Corr. Policy No. 9502.01(VI)(D)(3)(d)(3).




                                                  -6-
        Mr. Horton announced on the day of the hearing on his being out of place charge that he
desired to call Don Howard, a correctional counselor, as a witness. The chairperson of the
disciplinary board denied Mr. Horton’s request because he had not submitted the required “inmate
witness request” form. Mr. Horton does not deny that he failed to submit the required form. The
chairperson was acting within his discretion when he declined to permit Mr. Horton to call Mr.
Howard as a witness, and this court need not grant relief to persons who are responsible for the error
they are complaining about on appeal. Tenn. R. App. P. 36(a).5

                                                     B.
                                 Failure of the Reporting Officer to Testify

         Mr. Horton also insists that the disciplinary board acted illegally by convicting him on the
disrespect charge without requiring the reporting officer to appear and testify. The Department’s
Uniform Disciplinary Procedures require the reporting officer who witnessed the infraction to testify
at the disciplinary hearing “unless this requirement is waived by the inmate in writing” and provide
that, by waiving the reporting officer’s presence, the prisoner agrees “to have the officer’s statements
in the disciplinary report accepted by the board as testimony.” Tenn. Dep’t Corr. Policy No.
9201(V)(D)(3)(c)(4).

        The carbon copy of the report of the disciplinary proceedings involving Mr. Horton’s
disrespect charge contains his signed waiver of his right to have the reporting officer present.
Because he effectively waived this right during the disciplinary proceeding, he cannot take issue on
appeal with the failure of the reporting officer to testify. Tenn. R. App. P. 36(a). Based on the
documents attached to Mr. Horton’s complaint, the trial court properly dismissed the portion of his
petition for common-law writ of certiorari predicated on the reporting officer’s failure to testify.

                                                 C.
                         Review and Approval by the Commissioner’s Designee

         The employees of privately operated prisons, such as the South Central Correctional Center,
do not have the authority to discipline prisoners. Tenn. Code Ann. § 41-24-110(5). This authority
is, as a matter of law, reserved to the Commissioner and cannot be delegated. Accordingly, with
regard to disciplinary proceedings involving Class C disciplinary offenses, the Uniform Disciplinary
Procedures require the chairperson of a disciplinary board consisting of employees of a private
contractor to forward the board’s proposed punishment, unless the punishment is simply a “verbal
warning,” to the commissioner’s designee prior to the imposition of punishment. Tenn. Dep’t Corr.
Policy No. 9502.01(VI)(D)(2) (1995). Accordingly, the board’s proposed punishment is simply a

         5
           Mr. Ho rton asserts that M r. Ho ward would have testified “that p etitioner’s walk-c [sic] was in the commissary
line and [that he] se en the p etitioner in the commissary line and . . . issued the petitioner his commissary at the time of
the alleged offense.” W e do not see how this testimony could have helped exonerate M r. Horton. If anything, it appears
to corro borate the charging officer’s report, that Mr. Ho rton got into the commissary queue before the evening count of
inmates had b een com pleted. It was unquestionably within the chairperso n’s discretion to refuse to bring in a witness
whose testimony would have added nothing to M r. Ho rton’s case. Cf. Perry v. Cam pbe ll, No. M1998-00943-COA-R3-
CV, 2001 WL 46988, at *3 (Tenn. Ct. App. Jan. 22, 2001) (N o Tenn. R. Ap p. P. 11 application filed) (holding that the
disciplinary board chair did not ab use his d iscretion by refusing to allow an inmate to call a witness whose testimony
would have bee n cum ulative).

                                                            -7-
recommendation, and the final approval of a disciplinary action rests solely with the commissioner’s
designee. Mandela v. Campbell, 978 S.W.2d at 533.

        After the trial court decided this case, we addressed the consequences of a disciplinary
board’s failure to obtain the approval of the commissioner’s designee before imposing discipline.
The Department argued, just as it does here, that compliance with Tenn. Dep’t Corr. Policy No.
9502.01(VI)(D)(2) was unnecessary in circumstances where the prisoner had appealed the discipline
to the assistant commissioner and ultimately to the commissioner. We disagreed and held that the
Department could not sidestep the plain requirements of its own Uniform Disciplinary Procedures
by relying on prisoner-initiated appeals to avoid Tenn. Code Ann. § 41-24-110(5)’s plain prohibition.
Pigg v. Casteel, No. 01A01-9807-CH-00384, 1999 WL 166499, at *4 (Tenn. Ct. App. Mar. 29,
1999) (No Tenn. R. App. P. 11 application filed).

        As far as the appellate record shows, Mr. Horton received only an oral warning as his
punishment for being out of place. Because Tenn. Dep’t Policy No. 9502.01(VI)(D)(2) does not
require approval of the commissioner’s designee prior to the imposition of an oral warning, the
disciplinary board could issue an oral warning to Mr. Horton without any involvement by the
commissioner’s designee. Accordingly, the trial court properly dismissed the portion of Mr.
Horton’s petition challenging the procedures related to his being out of place charge for failure to
state a claim upon which relief can be granted.

        The punishment Mr. Horton received for the disrespect charge was more severe than an oral
warning. Accordingly, the disciplinary board was required to obtain the approval of the
commissioner’s designee before imposing it. The appellate record contains no indication that the
disciplinary board complied with Tenn. Dep’t Policy No. 9502.01(VI)(D)(2) with regard to Mr.
Horton’s disrespect charge. Therefore, following Pigg v. Casteel, we find that Mr. Horton has stated
a claim upon which relief can be granted with regard to the disrespect charge.6

                                                           VI.

        We affirm the trial court’s decision to dismiss the portions of Mr. Horton’s petition for writ
of common-law certiorari challenging his conviction for being out of place. However, we vacate the
dismissal of the portion of Mr. Horton’s petition relating to his disrespect conviction and remand the
case to the trial court for further proceedings consistent with this opinion. We tax the costs of this
appeal to the State of Tennessee.



                                                                  _____________________________
                                                                  WILLIAM C. KOCH, JR., JUDGE



         6
           It may very well be that the full record of the proceedings regarding this disciplinary infraction would reveal
that the commissioner’s designee in fact approved the p unishm ent prio r to its impo sition. However, the Depa rtment
elected not to file the complete record o f the proceed ing. As an app ellate court, we must ba se our d ecision only on the
contents of the appellate record.

                                                            -8-
