                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 February 23, 2001 Session

                           TRACY McGOWAN
                                  v.
                   DOCTOR R. CRANTS and ALAN BARGERY

                  An Appeal from the Circuit Court for Hardeman County
                        No. 9041    Jon Kerry Blackwood, Judge



                   No. W2000-02398-COA-R3-CV - Filed February 6, 2002


       This is a civil lawsuit filed by a prisoner. The inmate filed a complaint against the prison
warden and the chairman of the board of the company which owns and operates the prison, alleging
negligence and violations of his constitutional rights. The inmate moved for default judgment,
which was denied. The defendants then filed a motion for summary judgment, asserting that there
were no material facts in dispute. The trial court granted the defendants’ motion for summary
judgment. The inmate now appeals. We reverse, finding that there are genuine issues of material
fact.

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

HOLLY KIRBY LILLARD , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and ALAN E. HIGHERS , J., joined.

Tracy McGowan, pro se.

Tom Anderson, Jackson, Tennessee, for the appellees Doctor R. Crants and Alan Bargery.

                                           OPINION

        This is a civil lawsuit filed by a prisoner. On April 8,1999, plaintiff/appellant Tracy
McGowan(“McGowan), an inmate at the Hardeman County Correctional Facility (“HCCF”), filed
suit against defendant/appellees Alan Bargery and Doctor R. Crants (collectively “the defendants”),
alleging negligence and violation of his rights under the First, Eighth, and Fourteenth Amendments
to the United States Constitution. Alan Bargery (“Bargery”), at all relevant times, was warden of
HCCF. Doctor R. Crants is chairman of the board for Corrections Corporations of America, which
owns and operates HCCF. In the complaint, McGowan alleged that, as a result of the defendants’
negligent failure to provide him with a secure condition of confinement, he was attacked by another
inmate at the facility, sustaining injuries to his face and mouth. McGowan, a medium-security
inmate, asserted that the inmate who attacked him was a maximum-security inmate who was known
to have a propensity for violence. He alleged that, by housing maximum-security inmates with
medium-security inmates, the defendants placed him in imminent danger of his health and safety,
violated his right against cruel and unusual punishment under the Eighth Amendment, and violated
his right to equal protection under the Fourteenth Amendment. McGowan also claimed that, as
retaliation for filing an inmate grievance complaint relating to HCCF’s alleged policy of housing
medium- and maximum-security prisoners in the same facility, the defendants placed him in the
same living unit with the inmate who had attacked him, violating his right to redress his grievances
under the First Amendment. Documents filed by McGowan indicate that he repeatedly sought
treatment for the injuries sustained in the attack and received only perfunctory responses from the
correctional facility.

         The defendants were granted an extension of time to June 2, 1999 in which to file their
Answer. On June 10, 1999, McGowan filed a motion for default judgment, citing the defendants’
failure to timely file an answer. A hearing was held on the motion for default judgment on October
1, 1999. The trial court denied the motion for default judgment. At the trial court’s direction, the
defendants finally filed their answer on that same day.

        McGowan filed a number of discovery requests, interrogatories and requests for documents,
relating to his allegations that the inmate who attacked him was a maximum-security inmate with
a known propensity for violence. The defendants objected to all of McGowan’s discovery requests.
McGowan filed several motions, explaining how the requested information was pertinent to his
claims and seeking an order compelling the defendants to produce the information and documents
sought. The trial court took no action regarding McGowan’s discovery requests.

        On August 9, 2000, the defendants filed a motion for summary judgment, supported by a
memorandum of law, an affidavit by Bargery, and a statement of undisputed facts. In their motion
for summary judgment, the defendants contended that there was no genuine dispute as to any
material fact and that they were entitled to summary judgment as a matter of law. As to defendant
Crants, the defendants noted that McGowan’s complaint contained no specific allegations against
Crants and did not assert that he knew of or was involved in any of the conduct alleged in the
complaint. As to defendant Bargery, the defendants asserted that the complaint failed to allege that
Bargery had any specific knowledge concerning the assault against McGowan. Rather, it alleged
only that Bargery maintained a policy of housing maximum-security inmates with medium-security
inmates. In an affidavit filed in support of the motion for summary judgment, Bargery asserted that
HCCF was a medium-security facility which housed only inmates classified as medium security or
below. He maintained that there were no maximum-security inmates at HCCF.

         McGowan later filed a motion in opposition to summary judgment, with a memorandum of
law in support. In an affidavit also filed with his motion, McGowan reiterated his contention that,
at the time he was assaulted, HCCF housed both medium- and maximum-security inmates, and
named specific inmates whom he alleged were classified as maximum security. He maintained that
both defendants were aware that inmates with different security levels were being housed in the same
facility. However, on September 19, 2000, the trial court entered an order granting the defendants’

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motion for summary judgment. The order did not include the trial court’s reasons for granting the
motion. McGowan now appeals.

        On appeal, McGowan first contends that the trial court erred in denying his motion for
default judgment, based on the defendants’ failure to respond to his motions in a timely manner. The
trial court has considerable discretion as to whether to grant default judgment. See Tenn. R. Civ.
P. 55 (2000). We do not find that the trial court abused its discretion in declining to grant
McGowan’s motion for default judgment.

        Next, McGowan contends that the trial court erred in granting the defendants’ motion for
summary judgment. A motion for summary judgment should be granted when the movant
demonstrates that there are no genuine issues of material fact and that the moving party is entitled
to a judgment as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment
bears the burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936
S.W.2d 618, 622 (Tenn. 1997). The nonmoving party must then demonstrate, by affidavit or
discovery materials, that there is a genuine, material fact dispute which warrants a trial. The
nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that
there is a genuine issue of material fact for trial. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993).
 Summary judgment is only appropriate when the facts and the legal conclusions drawn from the
facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

          Since only questions of law are involved, there is no presumption of correctness regarding
a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our review of the
trial court’s grant of summary judgment is de novo on the record before this Court. Warren v. Estate
of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

        Under all of the circumtances in this case, we must conclude that the granting of summary
judgment in favor of the defendants was inappropriate. The defendants’ motion alleges that
McGowan made no specific allegations against Crants, the chairman of the board for Corrections
Corporation of America, which owns and operates HCCF, and alleges only that Bargery, the warden,
maintained a policy of housing maximum-security inmates with medium-security inmates. Bargery’s
affidavit denies that the facility housed maximum-security inmates. However, in his complaint and
in the documents and affidavits filed in response to the defendants’ motion, McGowan alleges that
the facility in fact houses maximum-security inmates, naming specific inmates, and alleges that both
Bargery and Crants had knowledge of this fact. This appears sufficient to create a genuine issue of
material fact which would prevent the granting of summary judgment. Moreover, McGowan alleges
that the inmate who attacked him had a known propensity for violence and that he was retaliated
against for filing a grievance by being once again placed in the same living unit with the inmate who
attacked him. The defendants’ motion and affidavit does not address these allegations. This must
also be viewed against the backdrop of the trial court’s inaction in response to McGowan’s efforts
to obtain pertinent discovery.




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        At the very least, it is not entirely clear that summary judgment should be granted in this
case, and we are reminded of the Supreme Court’s admonition through Justice Harbison in Evco
Corp. v. Ross, 528 S.W.2d 20 (Tenn. 1975):

                The summary judgment procedure was designed to provide a quick,
                inexpensive means of concluding cases, in whole or in part, upon
                issues as to which there is no dispute regarding the material facts.
                Where there does exist a dispute as to facts which are deemed
                material by the trial court, however, or where there is uncertainty as
                to whether there may be such a dispute, the duty of the trial court is
                clear. He is to overrule any motion for summary judgment in such
                cases, because summary judgment proceedings are not in any sense
                to be viewed as a substitute for a trial of disputed factual issues.

Id. at 24-25.

       Regardless of whether McGowan ultimately amends his complaint to include HCCF and
Corrections Corporation of America as defendants, under all of these circumstances, we must
conclude that the trial court erred in granting the defendants’ motion for summary judgment.

       The decision of the trial court is reversed, and the cause is remanded for further proceedings
consistent with this Opinion. Costs are taxed against the Appellees, Doctor R. Crants and Alan
Bargery, and their surety, for which execution may issue if necessary.



                                                       ___________________________________
                                                       HOLLY KIRBY LILLARD, JUDGE




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