                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                      ASSIGNED ON BRIEFS OCTOBER 21, 2003

                        PAUL IVY v. ALTON HESSON, ET AL.

                Direct Appeal from the Circuit Court for Lauderdale County
                           No. 5231    Joseph H. Walker, Judge



                   No. W2003-01026-COA-R3-CV - Filed February 27, 2004




This case arises from a 42 U.S.C. § 1983 federal civil rights complaint filed by Ivy, an inmate of the
Tennessee Department of Correction. Ivy maintains that he received a disciplinary conviction in
retaliation for reporting an alleged incident of harassment involving a prison official. At trial, the
lower court granted the defendants’ motion to dismiss, which argued that: (1) Ivy does not have a
cognizable 42 U.S.C. § 1983 claim because his underlying disciplinary conviction was never
overturned; (2) Ivy cannot prove the causation element necessary to his retaliation claim; and (3)
Ivy’s claim is subject to dismissal without prejudice for failure to exhaust administrative remedies.
On appeal, Ivy challenges not only the dismissal of his complaint, but also the lower court’s refusal
to grant him attorney’s fees arising from a prior unrelated appeal in this matter. For the following
reasons, we affirm the ruling of the trial court.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

Paul Ivy, pro se, Mountain City, TN

Paul G. Summers, Attorney General & Reporter, Michael Moore, Solicitor General, Pamela S.
Lorch, Senior Counsel, Nashville, TN, for Appellees
                                       MEMORANDUM OPINION1

        This case involves a 42 U.S.C. § 1983 federal civil rights complaint filed by
Plaintiff/Appellant Paul Ivy (“Ivy”), an inmate of the Tennessee Department of Correction, housed
at West Tennessee State Penitentiary (“WTSP”) in Henning, Tennessee. Ivy alleges that, on January
5, 1999, he was harassed by Sgt. Aaron Tittle (“Tittle”) while walking to the prison cafeteria for
dinner. The following day, Ivy wrote a letter to the WTSP deputy warden, Robert Henry (“Henry”),
detailing the alleged harassment and asking prison officials to take steps to prevent any further
incidents. Ivy’s letter also contained the following:

         Over the years I have accumalated [sic] a history of assaults on staff and if I still
         participated in my adolescent activities it would be no problem for me to deal with
         and or handle my present problem with this officer for which I complain to you about
         now . . . I know that I can’t make it without the assistance of you in stopping this
         illegal and arbitrary action before it escalates to a level that leaves no winners and for
         this reason I truly hope that you take it upon yourself to stop this arbitrary action
         before it places me within a situation where I have [to] defend myself against a [sic]
         officer that truly has no legitimate reason to harrass [sic] and or attempt to injure me.

Based on this language, Ivy received a disciplinary conviction for threatening a WTSP employee.

        On March 22, 1999, Ivy filed suit in forma pauperis under 42 U.S.C. § 1983 in Lauderdale
County Circuit Court, alleging that he received the disciplinary conviction in retaliation for his letter
regarding Tittle’s alleged harassment. Ivy named as defendants warden Alton Hesson, associate
warden Tony Parker, deputy warden Robert Henry, Captain Moore, Sgt. Aaron Tittle, and
disciplinary board chairman Michael Ottinger. As an inmate filing a claim in forma pauperis, Ivy
was required by Tenn. Code Ann. § 41-21-805 (2003) to file an affidavit listing any previous
lawsuits he had filed. Ivy filed his affidavit on April 14, 1999, specifying a previously filed case
listed as docket number 3-97-1083, in which he alleged deliberate indifference while in maximum
custody at the prison. On April 29, 1999, the defendants filed a motion for summary judgment,
claiming that Ivy failed to supply a complete list of all his previous lawsuits and, thereby, violated
the requirements of Tenn. Code Ann. § 41-21-805. In support of their motion, the defendants offered
the affidavit of Tonya Thornhill (“Thornhill”), a record specialist for the Civil Rights and Claims
Division of the Office of the Attorney General and Reporter. Thornhill stated in her affidavit that
Ivy had filed at least four other lawsuits not mentioned in his affidavit, though she did not specify
the case name or docket numbers of these other cases.



        1
                   Rule 10 (Court of Appeals). Memorandum Opinion - (b) The Court, with the concurrence of all judges
participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a
formal opinion would have no precedential value. W hen a case is decided by memorandum opinion it shall be designated
“Memorandum Opinion,” shall not be published, and shall not be cited or relied on for any reason in a subsequent
unrelated case.

                                                        -2-
        On or about May 1, 1999, Ivy wrote Thornhill asking her to provide him with any
information relating to the additional lawsuits to which she referred in her affidavit. In a letter dated
May 7, 1999, the assistant attorney general denied Ivy’s request, stating that “[i]t is your
responsibility to come forth with evidence, if any, which you contend supports your position . . .
[y]ou are well aware of the lawsuits which you have filed in the past.” In response, on May 12,
1999, Ivy filed a motion to compel the defendants to provide him with a “complete listing” of every
lawsuit referenced in Thornhill’s affidavit. Without ruling on Ivy’s motion to compel, the trial court
subsequently granted the defendants’ motion for summary judgment and dismissed the case without
prejudice on May 11, 2001, based on Ivy’s failure to comply with the statutory disclosure
requirement. Ivy then appealed the grant of summary judgment to this Court. On appeal, we
reversed and remanded, holding:

                In considering the defendants’ motion for summary judgment, the only issue
        before the trial court was whether Ivy had filed a complete affidavit in accordance
        with Tennessee Code Annotated § 41-21-805. The Thornhill affidavit constituted
        evidence to support the defendants’ position that Ivy’s affidavit was incomplete and
        his case should be dismissed. See Williams, 37 S.W.3d at 479 (dismissing prisoner
        claim based on incomplete affidavit). To defeat the defendants’ motion, the burden
        shifted to Ivy to “demonstrate, by affidavits or discovery materials, that there is a
        genuine material fact dispute” about the sufficiency of his affidavit. Byrd, 847
        S.W.2d at 211. Though Ivy attempted to conduct limited discovery on this issue
        through his motion to compel, the trial court did not address the motion to compel
        and instead simply granted the defendants’ summary judgment motion.

                Under these circumstances, we must conclude that the trial court abused its
        discretion in not permitting Ivy limited discovery to ascertain the accuracy of his
        affidavit under Tennessee Code Annotated § 41-21-805, the accuracy of Thornhill’s
        affidavit, and to rebut the defendants’ motion for summary judgment. We have held
        that “[a] prisoner pursuing a civil lawsuit may conduct discovery, but the discovery
        is subject to appropriate limitations imposed by the trial court.” Dotson, 1998 Tenn.
        App. LEXIS 117, at *7; see Luther, 1998 Tenn. App. LEXIS 193, at *10-12. On
        remand, the trial court shall have broad discretion to determine the scope and manner
        of discovery. In limiting that discovery, the trial court must weigh the plaintiff’s
        interests with the institutional concerns of the correctional facility. See Thompson
        v. Hammond, 1999 Tenn. App. LEXIS 229, at *14-15 (Tenn. Ct. App. April 6, 1999).
        Thus, the trial court’s grant of summary judgment in favor of the defendants is
        reversed and the cause is remanded . . . for further proceedings not inconsistent with
        this Opinion.

Ivy v. Hesson, No. W2001-01332-COA-R3-CV, 2002 Tenn. App. LEXIS 385, at *9-11 (Tenn. Ct.
App. May 29, 2002).




                                                  -3-
         On remand, the defendants filed a motion to dismiss Ivy’s complaint.2 In this motion, the
defendants argued that Ivy’s claim suffered from infirmities other than the lack of complete
disclosure in his Tenn. Code Ann. § 41-21-805 affidavit. Specifically, the defendants maintained
that: (1) Ivy does not have a cognizable 42 U.S.C. § 1983 claim because his underlying disciplinary
conviction was never overturned; (2) Ivy cannot prove the causation element necessary to his
retaliation claim; and (3) Ivy’s claim is subject to dismissal without prejudice for failure to exhaust
administrative remedies. After considering Ivy’s motion and supporting memorandum opposing
dismissal, the trial court granted the defendants’ motion to dismiss on April 14, 2003. Ivy then
timely filed the instant appeal challenging the ruling of the lower court.

        Ivy raises three issues, as we perceive them, for our review: (1) Whether the trial court erred
in granting the defendants’ motion to dismiss; (2) Whether the trial court erred in not granting Ivy’s
motion for attorney’s fees and sanctions; and (3) Whether the trial court and defense counsel acted
unethically. We will address each issue in turn.

       In his first issue on appeal, Ivy argues that the lower court erred in granting the defendants’
motion to dismiss. The standard of review for a motion to dismiss, under Tenn. R. Civ. P. 12.02(6),
was summarized by the Tennessee Supreme Court in Cook v. Spinnaker’s of Rivergate, Inc., 878
S.W.2d 934 (Tenn. 1994):

         A Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can
         be granted tests only the sufficiency of the complaint, not the strength of a plaintiff’s
         proof as does, for example, a motion for a directed verdict. Merriman v. Smith, 599
         S.W.2d 548, 560 (Tenn. Ct. App. 1979) . . . The basis for the motion is that the
         allegations contained in the complaint, considered alone and taken as true, are
         insufficient to state a claim as a matter of law.

Cook, 878 S.W.2d at 938. In its order dismissing the case, the trial court adopted the three grounds
for dismissal enumerated in the defendants’ motion. First, the lower court found that Ivy did not
have a cognizable claim under 42 U.S.C. § 1983. The trial court began its analysis with the Supreme
Court’s holding in Heck v. Humphrey, 512 U.S. 477 (1994), which states that an inmate does not
have a cognizable § 1983 claim for unconstitutional conviction or imprisonment unless the
conviction or sentence has been overturned on appeal. Id. at 486-87. The lower court also noted that
the principles of Heck were extended to a prisoner’s § 1983 claim arising from a prison disciplinary
conviction, like that of Ivy in the present case, by the Supreme Court in Edwards v. Balisok, 520 U.S.
641, 648 (1997). The trial court then found that, rather than being overturned, Ivy’s disciplinary
conviction had been affirmed on appeal. As such, the lower court ruled that Ivy failed to
demonstrate a cognizable § 1983 claim. The trial court then set forth two additional alternate and



         2
                   The record before us does not reveal what occurred on remand regarding Ivy’s fulfillment of the
disclosure requirements of Tenn. Code Ann. § 41-21-805. However, the ultimate disposition of that issue is not relevant
to the appeal currently before us.

                                                         -4-
independent bases for dismissal: Ivy’s inability to prove the causation element necessary to a
retaliation claim and his failure to properly exhaust the available administrative remedies.

        On appeal, Ivy does not seem to challenge the substantive accuracy of the trial court’s
decision. Indeed, he fails to offer any legal authority or evidence in the record that might dispute the
legal and factual underpinnings of the trial court’s order of dismissal. Instead, Ivy premises his
challenge of the lower court’s ruling on a misinterpretation of our holding in the previous appeal in
this case. Ivy begins by stating that “[t]he undisputed fact was the sole reason the appellate court
reversed and remanded this cause back to the trial court [was] for further proceedings not
inconsistent with the order.” He then maintains that the arguments propounded by the defendants
in their motion to dismiss, and adopted by the trial court in its order, were “inconsistent with the
appellate court order.” We disagree. Ivy’s brief to this Court is permeated with the notion that our
holding in the previous appeal in this case somehow limited the substantive issues that could be
addressed on remand. Ivy’s confusion seems to stem in large part from the conclusion of our
holding, in which we stated that “[t]he decision of the trial court is reversed and the cause is
remanded for further proceedings not inconsistent with this Opinion.” Ivy, 2002 Tenn. App. LEXIS
385, at *11 (emphasis added). Ivy’s argument relies on the premise that the emphasized language
above somehow means that all subsequent proceedings in the lower court are limited to the issues
addressed on appeal. This is an inaccurate interpretation of our holding.

          In the previous appeal, we reversed the trial court’s grant of summary judgment, which was
based on Ivy’s failure to satisfy the requirements set forth in Tenn. Code Ann. § 41-21-805 regarding
the complete disclosure of prior lawsuits. We instructed the lower court to allow Ivy limited
discovery to ascertain the veracity of his own affidavit, as well as that of the defendants’ record
specialist. We also emphasized the trial court’s broad discretion regarding discovery proceedings
in a case such as this, which involves the competing interests of the plaintiff and the correctional
institution. We then remanded the case, instructing the court to conduct further proceedings that do
not conflict with our order to allow limited discovery and, in so doing, to maintain a balance between
the interests of the plaintiff and the correctional institution. Nowhere does our holding limit the
issues that may be addressed on remand; it simply guides the manner and extent of discovery to be
afforded Ivy. As such, we cannot agree with Ivy’s contention that the trial court’s order of dismissal
was inconsistent with our prior Opinion.

         In his next issue, Ivy argues that the lower court erred in denying his motion seeking
sanctions and attorney’s fees for the defendants’ refusal, prior Ivy’s first appeal, to supply him with
a list of the lawsuits referenced in Thornhill’s affidavit. After conducting a thorough review of the
record, we were not able to find any indication that such a motion was ever filed or denied. As such,
we find this issue is without merit.

        In his final issue on appeal, Ivy maintains that both the trial court and defense counsel
behaved unethically throughout the course of proceedings. Ivy bases his argument for this issue on
the same misinterpretation of our prior holding as in his first issue. He argues that it was unethical
for defense counsel to file, and the trial court to grant, a motion to dismiss that included arguments


                                                  -5-
inconsistent with our Opinion. However, as stated earlier, our prior holding did not limit the issues
to be addressed on remand. Neither defense counsel nor the trial court acted inconsistently, let alone
unethically, with regard to our holding. Accordingly, we find Ivy’s claim is without merit.

        For the foregoing reasons, we affirm the ruling of the trial court. Costs of this appeal are
taxed to the Appellant, Paul Ivy, for which execution may issue if necessary.




                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




                                                 -6-
