                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                                   On-Briefs September 12, 2001

  DAN JOHNSON v. CORRECTIONS CORPORATION OF AMERICA, ET
                           AL.

                 A Direct Appeal from the Circuit Court for Hardeman County
                   No. 9308   The Honorable Jon Kerry Blackwood, Judge



                    No. W2001-00763-COA-R3-CV - Filed December 11, 2001


         Plaintiff, an inmate at a correctional facility, filed a complaint against the facility’s private
management company and its employees, alleging negligence, intentional infliction of emotional
distress, assault and battery, medical malpractice under Tennessee state law, and violations of
prisoner’s rights under the United States Constitution. The trial court dismissed the complaint for
failure to state a claim upon which relief can be granted. Inmate appeals. We reverse and remand.


            Tenn.R.App.P. 3; Judgment of the Circuit Court Reversed and Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS ,
J. and DAVID R. FARMER , J., joined.

Dan Johnson, Pro Se

Tom Anderson, Jackson, For Appellees

                                                 OPINION

        The record reflects that on August 31, 2000, plaintiff, Dan Johnson (“plaintiff”), filed a
complaint in the Circuit Court of Hardeman County, Tennessee against defendants, Corrections
Corporation of America (“CCA”), R. Crants, Alan Bargery, Cindy Settles, Rebecca Dotson, Shirley
Moore, Doctor Kahn, Edward Barr, John/Jane Doe(s)1. The complaint alleges that plaintiff is an
inmate at the Hardeman County Correctional Facility (“HCCF”), and on August 5, 1999 defendant,
Edward Barr, also an inmate at HCCF, attacked plaintiff by throwing boiling water in plaintiff’s face
and striking the plaintiff upon his head with an electric coffee pot, referred to as a “hot pot,” causing
severe personal injuries as described in the complaint.


        1
           There was no service of process on defendants R. Crants, Cindy Settles, Doctor Kahn, Edward Barr and
John/Jan e Doe (s), and they are not parties to this a ppe al.
       In Count I of the complaint, plaintiff seeks recovery of damages from defendant Barr for the
alleged assault and battery. Since defendant Barr was not served with process, this Count of the
complaint is not involved in this appeal.

        In Count II of the complaint, plaintiff alleges that after the assault he was escorted to the
medical department in the correctional facility and was seen by some attendants. He alleges that he
was made to wait several hours before being treated although complaining repeatedly about pain and
suffering. He alleges that defendant, Doctor Kahn, was the attending physician at the facility and
had a duty to exercise the required degree of care, skill, and diligence to give him proper treatment,
and that he failed to do so. Plaintiff further alleges that the attendants in the facility did not give him
the proper care and, because of their negligence, he endured unnecessary pain, suffering, and
aggravation of his injuries, and he demands judgment against Kahn and defendants John/Jane
Doe(s). However, since they have not been served with process in this case, this Count is not
involved in this appeal.

         In Count III of the complaint, plaintiff alleges that Doctor Kahn and the attendants in the
medical facility were acting “under the color of the statutes, customs, policies, and usage of the State
of Tennessee, County of Hardeman, City of Whiteville, and the Tennessee Department of Correction
(by contract).” He alleges that they showed intentional and deliberate indifference to his rights and
deprived him of his right to medical treatment causing him to suffer cruel and inhuman punishment,
all in violation of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.
Plaintiff seeks recovery in this Count against defendant Kahn and the attendants in the medical
facility, none of whom were served with process; therefore, this Count is not involved in this appeal.

        In Count IV of the complaint, plaintiff relates the disciplinary action taken against defendant
Barr because of his assault on plaintiff. In great detail he alleges that, on September 9, 1999, after
his discharge from the medical treatment facility, he was returned to the regular housing unit at
HCCF, and on September 13, 1999, he was removed from the regular housing unit and placed in
protective custody. He alleges that in retaliation for filing a formal grievance concerning his medical
treatment, prison officials then placed him in a punitive segregation unit without issuing a
disciplinary report or filing the proper due process procedures under Tennessee Department of
Correction policy. The complaint alleges that he was ultimately granted a due process hearing on
September 28, 1999, and the review committee recommended that he be released from segregation,
but that despite this recommendation he was held in segregation until October 30, 1999, and this was
at the behest of defendants, Dotson, Settles, and Bargery. He alleges that he was held in segregation
unnecessarily for protection about twenty days after the defendant Barr had been released from
custody and left the prison. The complaint further alleges that the actions of keeping plaintiff in
segregated custody by defendants, Moore, Dotson, Settles, and Bargery, was intentional, malicious,
willful, and wanton, and showed indifference to the consequences of their actions, all of which
inflicted mental and emotional suffering and distress. He demands judgment against the defendants
Moore, Dotson, Settles, and Bargery for $50,000.00 compensation and $50,000.00 punitive damages.




                                                   -2-
        In Count V, the complaint alleges that defendants CCA, through its employees and agents,
Crants and Bargery, negligently and carelessly permitted the sale and use of the “hot pots” by the
prisoners when they knew or should have known that they could be used to injure the inmates. The
complaint alleges that, by virtue of this negligence, plaintiff suffered grievous injuries and permanent
disfigurement and demands judgment against defendants, CCA, Crants, and Bargery for $200,000.00
compensatory and $100,000.00 punitive damages.

        In Count VI, the complaint alleges that the defendants, CCA, Crants, and Bargery, were
acting “under color of the statutes, ordinances, customs, policies, and usage of the State of
Tennessee, County of Hardeman, City of Whiteville, and the Tennessee Department of Correction
(by contract).” Plaintiff alleges that these defendants had a duty to protect him from violence and
failed to act in good faith to carry out the said duties, and that as a result of the said actions of these
defendants, he was severely and permanently injured. He demands judgment against these
defendants in the amount of $200,000.00 compensatory and $100,000.00 punitive damages.

        In Count VII of the complaint, plaintiff re-alleges and incorporates the previous counts and
alleges that at all times material the defendants, Kahn, Moore, Settles, Dotson, and Doe, were acting
under the direction and control of the defendants, CCA, Crants, and Bargery. The complaint alleges
that CCA, Crants, and Bargery, had a duty and obligation to instruct, supervise, and control the other
said defendants in their duties, and failed to comply with their duties. The complaint further alleges
that CCA, Crants, and Bargery, were acting under color of law and “approved, ratified, and covered
up the unlawful, deliberate, malicious, reckless, negligent, willful and wanton conduct of the other
defendants” as described in the complaint. This count seeks judgment against defendants, CCA,
Crants, and Bargery, in the amount of $200,000.00 compensatory damages and $100,000.00 punitive
damages.

        The record reflects that, on August 31, 2000, Mr. Johnson also filed a “Motion for
Restraining Order” to prevent “the defendants, their officers, agents, attorneys, or other persons in
active concert or participation with them, from retaliating or initiating reprisals against the
plaintiff . . .,” and this motion was denied by order entered November 1, 2000.

        On October 13, 2000, defendants, Corrections Corporation of America, Alan Bargery,
Rebecca Dotson, and Shirley Moore, filed a motion to dismiss pursuant to Rule 12.02(6),
Tenn.R.Civ.P., for failure to state a claim upon which relief can be granted. The memorandum filed
in support of the motion to dismiss asserts that Count I, II, III, IV, V, and VI, are barred by the
applicable statute of limitations, T.C.A. § 28-3-104. As to remaining claims, the memorandum
asserts that the allegations do not support a claim for retaliation. The memorandum states that
plaintiff has failed to “establish” that he has suffered an atypical and significant hardship in relation
to the ordinary incidents of prison life and has failed to assert any actual injury as a result of his
denial of access to court. The memorandum further states that plaintiff failed to allege that
defendants, CCA and Bargery, were directly involved in the incident, asserting that a corporation and
supervisory officials cannot be held liable for civil rights violations under the doctrine of respondeat
superior.


                                                   -3-
       On March 1, 2001, the trial court entered an order granting the motion to dismiss filed by the
above-named four defendants. Plaintiff has appealed and presents two issues for review:

                1. Whether the trial court erred in granting defendants’ motion to
                dismiss for failure to state a claim.

                2. Whether the trial court erred in denying plaintiff’s motion for a
                restraining order.

         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).

         In his complaint, Mr. Johnson alleges assault and battery, negligence, medical malpractice,
and constitutional violations stemming from events which occurred August 5, 1999. The trial court
apparently found those claims were barred by the applicable statute of limitations, since Mr.
Johnson’s complaint was marked filed on August 31, 2000, more than one year after the alleged
assault took place. However, Rule 5.06 of the Tennessee Rules of Civil Procedure allows a pro se
litigant more leeway in determining when an action is timely filed. Rule 5.06 provides, in relevant
part:

                If papers required or permitted to be filed pursuant to the rules of civil
                procedure are prepared by or on behalf of a pro se litigant
                incarcerated in a correctional facility and are not received by the clerk
                of the court until after the time fixed for filing, filing shall be timely
                if the papers were delivered to the appropriate individual at the
                correctional facility within the time fixed for filing. This provision
                shall also apply to service of paper by such litigants pursuant to the
                rules of civil procedure. "Correctional facility" shall include a prison,
                jail, county workhouse or similar institution in which the pro se
                litigant is incarcerated. Should timeliness of filing or service become


                                                   -4-
               an issue, the burden is on the pro se litigant to establish compliance
               with this provision.

Tenn. R. Civ. P. 5.06 (2001) (emphasis added).

        Plaintiff’s response to the motion to dismiss asserts that the complaint was filed July 31,
2000, and attached to the response is a photocopy of the front and back of a certified mail return
receipt postcard indicating that the circuit court clerk received the complaint and related papers on
August 2, 2000. The response also attaches a photocopy of a Department of Correction trust fund
account personal withdrawal request which indicates that $5.85 was withdrawn from Mr. Johnson’s
prison trust account on July 31, 2000 to cover the cost of postage. Coupled with these matters shown
in Mr. Johnson’s response, we notice a discrepancy in the record that indicates some error in the
filing date. A Uniform Affidavit of Indigency is shown in the record as being filed August 31, 2000
at the same time the complaint was filed. However, on the last page of the affidavit the record
indicates that the trial judge’s order authorizing the filing on pauper’s oath was signed by the judge
on August 21, 2000. With this discrepancy in the record, along with plaintiff’s assertion and the
evidence filed therewith concerning the correct filing date, the dismissal of the case by virtue of the
statute of limitations without an evidentiary hearing was inappropriate. We should also note that the
allegations of the complaint in Counts I, II, and III are against defendants who were not served with
process and could possibly be dismissed on the basis of the statute of limitations by failure to comply
with the rules concerning reissue of process. At any rate, as to the defendants involved in this
appeal, a factual dispute is involved concerning the true date of the filing of the complaint.

        Assuming Mr. Johnson can demonstrate that the court clerk received his complaint prior to
the expiration of the one-year statute of limitations, Mr. Johnson would be able to assert any claims
arising out of the events occurring on August 5, 1999 as they relate to defendants CCA, Bargery,
Dotson, and Moore. In the interest of judicial economy, we will now address the prima facie validity
of Mr. Johnson’s claims on appeal, including those dependent upon Mr. Johnson’s timely filing of
the complaint in this action.

         Counts I, II and III of Mr. Johnson’s Complaint contain allegations against defendants who
are not parties to this appeal. Count IV of the complaint, as amended in Mr. Johnson’s Amended
complaint, filed November 7, 2000, alleges retaliation for Mr. Johnson’s filing of a grievance.
Specifically, Mr. Johnson claims he was placed in punitive segregation after he filed a grievance on
August 13, 1999, “complaining of the circumstances surrounding the assault, the denial of proper
medical treatment, and giving notice of his intent to seek legal action.” Mr. Johnson alleges this
retaliation was in violation of his

               constitutional, statutory, and administrative rights, privileges and
               immunities to free speech, access to the courts, and due process of
               law as guaranteed and protection under the First, Fifth, and
               Fourteenth Amendments to the United States Constitution; Article 1,
               Sections 8, 17, and 19 of the Tennessee Constitution; Tenn. Code


                                                 -5-
                   Ann. § 4-3-603, and § 41-24-101 et seq; and Tennessee Department
                   of Correction Policy Number 9501.01.

         We begin with Mr. Johnson’s First Amendment claim under 42 U.S.C. § 1983 (2001 Supp.).2
A retaliation claim essentially alleges that a defendant took adverse action against the plaintiff
because the plaintiff engaged in constitutionally or statutorily protected conduct. See Thaddeus-X
v. Blatter, 175 F.3d 378, 386-87 (6th Cir. 1999). The Eleventh Circuit Court of Appeals has held
that filing a grievance for segregated confinement is constitutionally protected conduct under the
First Amendment. See Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th Cir. 1989). The Sixth
Circuit Court of Appeals has developed a three-part analysis to determine if a plaintiff states a viable
retaliation claim:

                    (1) the plaintiff engaged in protected conduct; (2) an adverse action
                    was taken against the plaintiff that would deter a person of ordinary
                    firmness from continuing to engage in that conduct; and (3) there is
                    a causal connection between elements one and two - - that is, the
                    adverse action was motivated at least in part by the plaintiff’s
                    protected conduct.

Thaddeus-X, 175 F.3d at 394.

         In the case at bar, Mr. Johnson has alleged all of the above elements of a prima facie claim
of retaliation for his filing a grievance. Defendants claim Mr. Johnson “failed to establish that he
suffered an atypical and significant hardship in relation to ordinary incident of prison life, failed to
[assert] any actual injury as a result of allegations of denial of access to courts and failed to allege
that the Defendants . . . were in some way directly involved in the incident.” However, Mr.
Johnson’s Amended complaint alleges what we believe could be considered just such an “atypical
and significant hardship.” Mr. Johnson also alleges that his extended confinement resulted in the
interruption of his “mental health treatment,” which caused “his mental condition to severely
deteriorate.” Mr. Johnson claims that defendants Dotson, Moore, and Bargery made the decision to
place him in punitive segregation. Construed in the light most favorable to Mr. Johnson, we believe



       2
           That section provid es, in rele van t part:

                   § 1983 . Civil action for deprivation of rights
                   Every person who, under color of any statute, ordinance, regulation, custom, or
                   usage, of any State or Territory or the District of Columbia, subjects, or ca uses to
                   be subjected, any citizen of the United States or other person within the jurisdiction
                   thereof to the deprivation of any rights, privileges, or immunities secured by the
                   Constitution and law s, shall be liable to the party injured in an action at law, suit
                   in equity, or othe r proper p roceeding for redress . . .

       (West Supp . 2001).

                                                            -6-
Mr. Johnson clearly states a claim for retaliation, both under the United States and Tennessee
Constitutions.
        Mr. Johnson also alleges that defendants denied him his rights under the Fourteenth
Amendment when they placed “him in punitive segregation without providing plaintiff with the
minimum due process requirements. . .” The Due Process Clause of the Fourteenth Amendment
protects individuals in part by guaranteeing fair procedure. See Zinerman v. Burch, 494 U.S. 113,
125 (1990). “In procedural due process claims, the deprivation by state action of a constitutionally
protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without due process of law.” Id. Such a claim
is not actionable under 42 U.S.C. § 1983 until the State fails to provide due process. Id. The
question, therefore, is what process is due, if any, and whether the process the State provides is
constitutionally adequate. Id.

        The Sixth Circuit Court of Appeals has held that “policy statements and other promulgations
by prison officials” can create liberty interests, the abrogation of which may violate a prisoner’s due
process rights. Bills v. Henderson, 631 F.2d 1287, 1291 (6th Cir. 1980). Similarly, the Sixth Circuit
has noted that:

               Where statutes or prison policy statements have limited prison
               officials’ discretion by imposing a specific prerequisite to the
               forfeiture of benefits or favorable living conditions enjoyed by a
               prison, an expectation or entitlement has been created which cannot
               be taken away without affording the prisoner certain due process
               rights.

Id. at 1292-93. The United States Supreme Court has added a requirement that only those restraints
to a prisoner’s liberty which impose an “atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life” are actionable under the Due Process Clause. Sandin v.
Conner, 515 U.S. 472, 484 (1995).

        In the case at bar, Mr. Johnson does not challenge the constitutionality of the administrative
process itself, but alleges that defendants denied him process provided by Tennessee Department of
Correction policy. Mr. Johnson alleges that, before he was placed in punitive segregation, TDOC
policy provided him with certain disciplinary procedures, including issuance of a disciplinary report.
He claims that defendants failed to follow these procedures when they transferred him from
protective to punitive segregation. Mr. Johnson also alleges that he was denied his mental health
treatment and held in segregation an additional 20 days after the release of defendant Barr, in spite
of the fact that the review committee recommended he be released from segregation.

        Since this case comes to us on a motion to dismiss, we must take as true Mr. Johnson’s
allegations that defendants failed to follow existing disciplinary procedures, and placed him in
punitive segregation “without a disciplinary report being issued, without any of the Uniform



                                                 -7-
Disciplinary Procedures being followed.” Under the above-cited authorities, Mr. Johnson’s
complaint states a prima facie claim of a due process violation.
        Counts V and VI of Mr. Johnson’s complaint addresses defendant’s alleged failure to protect
Mr. Johnson from “violence at the hands of other prisoners.” Although Mr. Johnson mentions the
Fifth, Eighth and Fourteen Amendments as the legal basis of this “failure to protect” claim, we
believe this claim falls squarely under the Eighth Amendment’s prohibition against cruel and
inhuman punishment. See, generally, Graham v. Connor, 490 U.S. 386, 395 (noting that claims
under 42 U.S.C. § 1983 must be judged “by reference to the specific constitutional standard which
governs that right.”)

        “A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate
violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994) (citations omitted).
See also Street v. Corrections Corporation of America, 102 F.3d 810, 814 (6th Cir. 1996). To hold
prison officials liable for an Eighth Amendment violation, an inmate must show: (1) that the
conditions of his incarceration pose him a “substantial risk of serious harm,” and (2) that the prison
official’s state of mind was “deliberate indifference” to the inmate’s health or safety.” Farmer, 511
U.S. at 834. This “deliberate indifference” standard is the equivalent to reckless disregard of the risk
of serious harm. Farmer, 511 U.S. at 836. In determining whether such a standard is met, courts
must determine if a prison official was “aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.

        For the purposes of reviewing the trial court’s dismissal of the claims in this case, we hold
that the allegations contained in Mr. Johnson’s complaint are sufficient to state a prima facie claim
of an Eighth Amendment violation. Mr. Johnson has specifically alleged defendants’ state of mind
as “knowingly . . . or with deliberate indifference.” Mr. Johnson has alleged that defendants knew
that the sale of hot pots to prisoners, and permitted use of those hot pots by prisoners, had resulted
in “dozens of assaults against prisoners by other prisoners” both prior to, and after the incident out
of which this lawsuit arose.

       Since we have held that Mr. Johnson’s claims must survive defendants’ Motion to Dismiss,
and since Count VII of Mr. Johnson’s complaint is essentially a restatement of the prior Counts, we
need not address its validity here.

       Finally, we feel it necessary to address what we feel is a significant error contained in
defendants’ appellate brief. Counsel for defendants writes,

                In reviewing whether the evidence supports the Order, the courts
                follow “. . . 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. 1989),
                amended 877 F.2d 5 (6th Cir. 1989); Calhoun v. Baylor, 646 F.2d
                1158, 1160 (6th Cir. 1981). Orders of the trial courts are entitled to
                considerable defense, and judgments supported by some competent,


                                                  -8-
               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.

The cases counsel for defendants cites pertain to evidence supporting judgments, and have nothing
to do with a case dismissed for failure to state a claim. As we have said, “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.”

        As to second issue in this case, concerning the trial court’s denial of Mr. Johnson’s motion
for a restraining order, we affirm the trial court. Rule 65.03 of the Tennessee Rules of Civil
Procedure provides that:

               A restraining order may be granted at the commencement of the
               action or during the pendency thereof without notice, if it is clearly
               shown by verified complaint or affidavit that the applicant's rights are
               being or will be violated by the adverse party and the applicant will
               suffer immediate and irreparable injury, loss or damage before notice
               can be served and a hearing had thereon.

Tenn. R. Civ. P. 65.03 (2001). We believe that, in this case, no hearing was necessary for the trial
court to determine such an order was unwarranted in this case. From Mr. Johnson’s complaint, it
appears that the retaliation Mr. Johnson was concerned about, if any, had already occurred by the
time Mr. Johnson sought the restraining order. We find nothing in the record to indicate defendants’
proclivity for retaliation because of a civil suit for damages.

        For the foregoing reasons, the Order of the trial court dismissing plaintiff/appellant’s
complaint is reversed. This case is remanded to the trial court for an evidentiary hearing on the issue
of statute of limitations and for further proceedings consistent with this opinion. Costs of this appeal
are assessed to the defendants/appellees.




                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                                  -9-
