                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs March 10, 2000

           FLOYD CAMPBELL v. CORRECTIONS CORPORATION
                          OF AMERICA

                     Appeal from the Chancery Court for Wayne County
                         No. 10306    Jim T. Hamilton, Chancellor



                     No. M1999-01082-COA-R3-CV - Filed August 7, 2001


This is an appeal by an inmate in a prison operated by Corrections Corporation of America (CCA).
His claim stems from the monetary loss he received as a result, he alleges, of CCA employee(s)
adding an unauthorized name and number to Mr. Campbell’s call list which resulted in unauthorized
charges. The court below dismissed Mr. Campbell’s complaint on the grounds that the complaint
did not allege a cause of action against CCA. We disagree. Mr. Campbell did sufficiently allege
a cause of action against CCA for the negligence of its employee(s) in violating prison policies and
adding an eleventh name and number to his call list without his permission or authorization. Further,
CCA may be held vicariously liable for the negligent acts of its employees and, therefore, is a proper
defendant.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                Reversed and Remanded

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S.,
and William C. Koch, Jr., J., joined.

Floyd Campbell, Pro Se, Clifton, Tennessee.

Tom Anderson, Jackson, Tennessee, for the appellee, Corrections Corporation of America.

                                             OPINION

       Mr. Campbell, an inmate of the Department of Correction, filed this action against Correction
Corporation of America (“CCA”), a private prison contractor who operates the prison where Mr.
Campbell is incarcerated, South Central Correctional Center (“SCCC”), alleging that his inmate
telephone account had been accessed and utilized by an unknown person without his knowledge or
permission. He alleged that CCA had a duty to prevent unauthorized access and that its negligence
was responsible for his loss of money. CCA filed a motion to dismiss, pursuant to Tenn. R. Civ. P.
12.02(6) for failure to state a claim upon which relief can be granted, on the basis the complaint
failed to allege any actions or inactions by CCA which would entitle Mr. Campbell to relief. The
trial court granted the motion to dismiss, and Mr. Campbell appealed.

        A Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim upon which relief
can be granted tests only the legal sufficiency of the complaint, not the strength of the petitioner’s
proof. Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). The basis for the
motion is that the allegations contained in the complaint, considered alone and taken as true, are
insufficient to constitute a cause of action as a matter of law. Id. In resolving the issues in this
appeal, we are required to construe the complaint liberally in the plaintiff’s favor and take the
allegations of the complaint as true. Bell v. Icard, Merrill, Cullins, Timm, Furen and Ginsburg, P.A.,
986 S.W.2d 550, 554 (Tenn. 1999). Our standard of review on appeal from a trial court’s ruling on
a motion to dismiss is de novo, with no presumption of correctness as to the trial court’s legal
conclusions. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997).

       Mr. Campbell’s allegations, which we must accept as true for purposes of the motion, are as
follows. Inmates are given phone lists and phone accounts. Calls may be placed only to those
persons or numbers on the authorized list, and only authorized numbers are added to the list. Using
an access code individual to the inmate, only the inmate is supposed to be able to make a call, and
payment comes from the inmate’s phone account.

       Beginning sometime around April 13, 1998, a telephone number appeared on Mr. Campbell’s
phone list that he did not request be added to his list. From about April 13, 1998 until May 31, 1998,
telephone calls were made to this newly-added telephone number by an unknown person or persons.
The total amount deducted from Mr. Campbell’s phone account for these calls was approximately
$125.00.

       Mr. Campbell filed a grievance on May 25, 1998, apparently after learning of the charges to
the account. He complained that money was being taken from his phone account “by someone else
using my TDOC number.” Among other things, he asked for a new secret number for his phone
account.

      In his grievance, Mr. Campbell alleged he had informed his counselor on May 20 that
someone had been tampering with his phone account and had asked her to put a stop payment on his
account and that he had asked other correctional officers for help. He asserted his account had
dropped from $392.72 on May 20 to $280.71 as of the date he filed his grievance.

       Mr. Campbell received a response in which the grievance board “concurred with the
supervisor’s response, while recommending that this matter be investigated further.” The
supervisor’s response referred to by the board was to the effect that the supervisor had printed out
a summary of the phone calls made on Mr. Campbell’s account. He also stated:



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       A majority of the calls were made to Ms. Camella Fulton. “I spoke with Ms. Fulton
       . . . and she assured me she knew and spoke with I/M Campbell on a regular basis.
       From 5-1-98 through 5-25-98 there were over $100.00 worth of calls made to Ms.
       Fulton alone. I gave this printout to Counselor Richey to discuss with I/M Campbell.
       I assigned I/M Campbell a new access code and feel there is nothing more I can do.

       The warden reviewed the grievance board’s decision, agreed with the proposed response, and
added the following statement:

       I have personally done some additional investigating and have found that the person
       to whom counselor Richie talked is the wife of an inmate at another facility. All info
       will be packaged and sent to that facility for their consideration as a disciplinary.

      Thus, it would appear there was some question whether Mr. Campbell had made the calls or
whether his access code had been used to make the calls without his knowledge.

       He responded to the response from the grievance committee by stating that he wanted proof
(recordings) of the calls he supposedly made to Camella Fulton. He notes that he eventually saw the
warden regarding this grievance and that Camella Fulton was not on his phone list; it was Rhonda
Allen who had been added to his list by someone unknown. He also asked to be informed why
Rhonda Allen had been added to his phone list on April 15 as his sister when she was not his sister
and he had not requested she be added. Adding that name made his list longer than the maximum
allowed (ten). He also submitted a copy of his phone list for April, which did not include Rhonda
Allen or Camella Fulton. The form included instructions that changes to the list could only be made
during the first full week of April, July, October, and January, except in emergencies.

       In his brief, Mr. Campbell explains his claim clearly:

       The proper procedure for Inmate Telephone Accounts is for the inmate to submit a
       request that a certain telephone number be added to the inmate’s list. Once approved
       by the prison administration, the number is added to the computer system under the
       inmate’s access code. When an inmate wishes to make a telephone call, the inmate
       is required to input the telephone number and then the access code. The computer
       determines if the number is on the inmate’s approved telephone list and, if so,
       connects the number. If the inmate has not called collect, the cost of the call is
       automatically deducted from monies previously deposited by the inmate and/or the
       inmate’s family in the inmate’s Telephone Account.

       The access code assigned to an inmate is the inmate’s T.D.O.C. number, which is
       stamped on the inmate’s clothing and listed on the inmate’s identification card. This
       identification card is required to be placed in the window of the cell door during each
       institutional count, in full view of all inmates and staff. The identification card is
       also required to be submitted to other inmates when checking out such items as

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       cleaning supplies and library books. Therefore, the access code of each inmate is not
       confidential. Any inmate can determine the T.D.O.C. number, and therefore the
       telephone access code, of another inmate with ease. The telephone numbers
       themselves, however, are supposed to remain confidential. Only the inmate
       requesting the addition of the telephone number and the prison officials responsible
       for approving and entering the telephone number on the computer system would have
       access to the number.
                                                ...

       Logically, this negligence could only have been accomplished by employees of
       Appellee, through a lack of training and/or supervision on the part of Appellee.
       Therefore, Appellant alleged actions on behalf of Appellee that sustain the legal
       theory of negligence. Since any number of Appellee’s employees could have
       performed the negligence, Appellant also put forth the legal theory of respondent
       superior. Appellee is responsible for the negligence on any of its employee’s part
       toward the inmates under Appellee’s supervision. See Shell Petroleum Corporation
       v. Magnolia Pipe Line Company, 85 S.W.2d 829. Appellee is also liable for injuries
       done to the property or monies of inmates under Appellee’s supervision resulting
       from the acts of any of Appellee’s employees. See Mid-Continent Pipeline Company
       v. Crauthers, Oklahoma, 267 F.2d 568.

        CCA’s motion to dismiss and its position on appeal is that Mr. Campbell’s complaint is that
his inmate phone account has been accessed and utilized without his knowledge or permission,
“presumably by another unknown inmate.” Therefore, CCA contends, the allegations “are for
actions or inactions on behalf of certain unidentified individuals, but do not include any specific
allegations against the Defendant, CCA.”

         To the contrary, we interpret the complaint to allege negligence by employees of CCA in,
at least, allowing an unauthorized person and phone number to be added to Mr. Campbell’s list, thus
making the charging of these calls to his account possible. According to his allegations and
documents submitted in support thereof, the adding of that name and number was contrary to two
prison policies. In addition, he alleges he asked for a stop payment on his telephone account and for
help regarding the charges eleven days before the situation was corrected and that additional calls
were charged to him during that time.

        Therefore, we conclude Mr. Campbell has sufficiently alleged, for purposes of a Tenn. R.
12.02(6) motion, negligent conduct by employees of CCA which may have resulted in his loss of
money. The question, therefore, is whether these allegations against CCA employees, some
identified and some not, constitute allegations against CCA, the only defendant. We believe they
do.

      It is well established in Tennessee that an employer is vicariously liable for the actions of its
employees under the doctrine of respondeat superior as long as the employee is acting within the

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scope of his duties. Tennessee Farmers Mut. Ins. Co. v. American Mut. Liab. Ins. Co., 840 S.W.2d
933, 937 (Tenn. Ct. App. 1992); Bowers v. Potts, 617 S.W.2d 149, 156 (Tenn. Ct. App. 1981); Smith
v. Keyport Self-Storage, No. W1998-00810-COA-R3-CV, 2000 WL 558604 at *4 (Tenn. Ct. App.
May 5, 2000) (no Tenn. R. App. P. 11 application filed). Moreover,

       [t]he right of a person who has been injured or whose property has been damaged by
       negligence of an employee to sue the employer without joining the employee as a
       defendant has been well established in Tennessee by an opinion of this Court in
       Williams v. Pritchard, (1957), 43 Tenn. App. 140, 306 S.W.2d 46, wherein the Court
       quoted with approval from Volume 2 Am. Jur. as follows:

               On the question of joinder of principal and agent as parties defendant
               in actions predicated upon the tort of the agent, there is some lack of
               harmony in the decisions. According to the general rule, if the tort
               for which the plaintiff sues was committed by an agent so that there
               is liability upon both the agent, for the commission of the tort, and
               upon the principal, for the act of the agent within the scope of his
               employment, both principal and agent may be joined as parties
               defendant. Under this rule, the principal and agent may be sued
               separately or as joint tortfeasors, at the election of the one injured. It
               is not necessary to join principal and agent as joint tortfeasors or
               trespassers.

Rankhorn v. Sealtest Foods, 479 S.W.2d 649, 652 (Tenn. Ct. App. 1971).

        In Rankhorn, this court held that the employer was not released from liability even though
the plaintiff had taken a voluntary non-suit as to the employee defendant. 479 S.W.2d at 652. This
court held that the employer was still liable under a respondeat superior theory for the employee’s
actions even if the plaintiff chose not to proceed against the employee and only against the employer.
Id. This is exactly what Mr. Campbell has done in this case.

        The test for holding an employer liable requires the plaintiff to prove “(1) that the person who
caused the injury was an employee, (2) that the employee was on the employer’s business, and (3)
that the employee was acting within the scope of his employment when the injury occurred.”
Tennessee Farmers Mut. Ins. Co. v. American Mut. Liab. Ins. Co., 840 S.W.2d at 937. Taking the
allegations of the complaint as true, Mr. Campbell has alleged negligence on behalf of CCA
employees by allowing the unauthorized name and number to be added to Mr. Campbell’s list and
failing to take action to prevent further loss. Therefore, he has met the requirements to allege an
action against the employer, CCA.

         This court has previously held that CCA is the proper defendant for negligence claims or
torts arising from CCA’s operation of correctional facilities or the acts of its employees. Martin v.
State of Tennessee, No. M1999-01642-COA-R3-CV, 2001 WL 747640 at *3 (Tenn. Ct. App. July

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5, 2001) (no Tenn. R. App. P. 11 application filed); Greer v. Corrections Corp. of America, No.
01A01-9604-CH-00150, 1996 WL 697942 at *2 (Tenn. Ct. App. Dec. 6, 1996) (no Tenn. R. App.
P. 11 application filed) (appellate court reinstated claim against CCA for conversion of inmate’s
personal property, holding that CCA could be liable for the actions of its employees under the
doctrine of respondeat superior).

       We reverse the trial court’s order dismissing Mr. Campbell’s complaint and remand this
cause for further actions not inconsistent with this opinion. Costs of this appeal are taxed to the
appellee, CCA.



                                                     ___________________________________
                                                     PATRICIA J. COTTRELL, JUDGE




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