CHARLES HOLIFIELD,                 )
                                   )   Davidson Chancery
      Plaintiff/Appellant,         )   No. 96-3325-III

VS.
                                   )
                                   )
                                   )   Appeal No.
                                                   FILED
TDOC COMMISSIONER DONAL            )   01A01-9806-CH-00291
                                                   October 21, 1998
CAMPBELL, CORRECTIONS CORP.        )
OF AMERICA,                        )
                                                  Cecil W. Crowson
                                   )
                                                 Appellate Court Clerk
      Defendants/Appellees.        )


                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE

      APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                    AT NASHVILLE, TENNESSEE

              HONORABLE ELLEN HOBBS LYLE, CHANCELLOR



Charles Holifield, #154529
S.C.C.F. Annex Section C-130
P.O. Box 279, Carroll Road
Clifton, Tennessee 38425
PRO SE/PLAINTIFF/APPELLANT


Patricia Kussmann, #15506
Assistant Attorney General
425 Fifth Avenue North
Cordell Hull Building, Second Floor
Nashville, Tennessee 37243-0488
ATTORNEY FOR DEFENDANTS/APPELLEES



                    MODIFIED, AFFIRMED AND REMANDED.



                                  HENRY F. TODD, JUDGE




CONCURS:
BEN H. CANTRELL, P.J., M.S.
WILLIAM C. KOCH, JR., JUDGE
CHARLES HOLIFIELD,                              )
                                                )      Davidson Chancery
         Plaintiff/Appellant,                   )      No. 96-3325-III
                                                )
VS.                                             )
                                                )      Appeal No.
TDOC COMMISSIONER DONAL                         )      01A01-9806-CH-00291
CAMPBELL, CORRECTIONS CORP.                     )
OF AMERICA,                                     )
                                                )
         Defendants/Appellees.                  )

                                      OPINION

         One of the plaintiffs, Charles Holifield, a prisoner in the custody of the Tennessee

Department of Correction, has appealed from the dismissal of his suit against the Commissioner

of Correction and Corrections Corporation of America for failure to state a claim for which relief

can be granted. The other plaintiff joined in the complaint but has not appealed.



         The failure to state a claim for which relief can be granted is determined from an

examination of the complaint alone. Wolcotts Financial Services, Inc. v. McReynolds, Tenn.

App. 1990, 807 S.W.2d 708.



         The “Complaint for Declaratory Judgment” alleges:

                       1.      The suit is brought “with petition for
                declaratory order” pursuant to the Administrative Procedures
                Act: T.C.A. § 4-5-101 et. seq. - - - and pursuant to T.C.A. §
                29-14-101 et. seq. - - -.

                      2.      Plaintiffs are incarcerated in an institution of
                the Department of Correction managed by Corrections
                Corporation of America.


         Exhibit I to the petition is a collection of documents relating to a “Grievance” filed by

Larry Carter, a party to the petition in the Trial Court who did not appeal and is not before this

Court.



         Exhibit II to the petition is a collection of “unofficial copies” of directives of the

Commissioner regarding furloughs.

                                               -2-
       Exhibit III is a “Petition for Declaratory Order,” filed with the Department by Larry

Carter, a party in the Trial Court but not in this Court, and Robert Thompson, not a party in

either court.



       Exhibit IV is the response of the Department to the petition of Carter.



       Not marked exhibits, but filed with the petition in the Trial Court are the affidavits of

Holifield, Carter, and non parties Jesse Williams, Hakim Israel and Billie Hallimark.



       By amended petition, Carter and Holifield presented new Department Policies effective

December 1, 1996.



       The Trial Court entered an order dismissing Corrections Corporation of America for

failure to state a claim for which relief can be granted.



       The petitioners filed a “Motion for the Court to take Judicial Notice,” stating:

                        Throughout the petitions, both the original and
                amended, the petitions have only sought a declaratory order
                in reference to being only eligible for furlough consideration
                pursuant to the Legislature’s intent in T.C.A. 41-21-227.
                NOT THAT THEY HAVE ANY RIGHT TO BE GRANTED
                OR TO TAKE A FURLOUGH.


        The Trial Court entered its final judgment sustaining the motion of the Department

to dismiss for failure to state a claim for which relief can be granted. The judgment

concludes:

                In that plaintiffs have qualified to proceed as paupers, the
                Court assesses only state litigation tax.


        The qualification as a pauper does not exempt a litigant from liability for costs. The

judgment is modified to adjudge all trial court costs against the plaintiff and to award

execution therefor.



                                             -3-
       The appellant, Holifield, presents the following issues for review:

               1.      Did the Chancery Court of Davidson County err when
               dismissing appellant’s petition pursuant to the Administrative
               Procedures Act and Declaratory Judgment Act adjudicating
               that “Tennessee Code Annotated 41-21-227 does not create a
               liberty interest in furlough eligibility.”

               2.     Did the Chancery Court of Davidson County err when
               dismissing Corrections Corporation of America from this
               lawsuit for Declaratory Judgment under the Administrative
               Procedures Act.

               3.      Did the Chancery Court of Davidson County err when
               dismissing this action when appearing the Commissioner of
               Corrections, Donal Campbell, is acting in Quo Warranto, in
               violation of the separation of powers clause in the Tennessee
               Constitution.


       T.C.A. § 41-21-227 provides in pertinent part as follows:

                       Grant of furloughs to inmates. - (a) The department
               of correction is hereby authorized and empowered to grant
               furloughs to the inmates in the adult correction institutions
               administered and operated by the department.

                      (b)      Such furloughs shall be granted under the rules
               and regulations prescribed and promulgated by the
               commissioner of correction or the commissioner’s designated
               representative.

                      ( c)    All furloughs shall be made on an individual
               basis under reasonable conditions to inmates:

                               (1)    In the event of serious illness or death
                       of a member of the inmate’s immediate family;
                               (2)    Who have been recommended for
                       parole by the parole board;
                               (3)    Who have ninety (90) days remaining
                       before release on mandatory parole; or
                               (4)    Who have ninety (90) days remaining
                       before release without parole.


       The appellee-commissioner points out that the institution where Holifield is

incarcerated “is not considered a pre-release facility,” citing the “Inmate Grievance” filed by

Carter. The admissions of Carter may be considered in respect to his rights, but not as to the

rights of Holifield who did not participate in the admissions.




                                             -4-
       The Commissioner also points out that the December 1, 1996, policy exhibited to the

petition provides for one 48-hour furlough for inmates of the facility occupied by Holifield

for the purpose of securing employment or place of residence.



       Nevertheless, it does not appear that T.C.A. § 41-21-227 confers a “liberty interest”

within the due process provision of the U.S. Constitution Amendment XIV. In order for an

enforceable liberty interest to exist, there must be more than a unilateral expectation. There

must be a legitimate entitlement to the claimed interest. Connecticut Board of Pardons v.

Dumschat, 425 U.S. 458, 465, 101 S.Ct. 2460, 2464, 2465, 69 L.Ed. 2d 158 (1981).



       State statutes create a privately enforceable right only when the plaintiff is the

intended beneficiary, the asserted right is not so “vague and amorphous” as to strain judicial

competence, and the statute unambiguously imposes a binding obligation on the State.

Blessing v. Firestone, 520 U.S. 329, 117 S.Ct. 1353, 1359, 137 L.Ed. 2nd 569 (1997).



       A prisoner has no independent constitutional right to conditional release before the

expiration of a valid sentence. Greenholtz v. Inmates of Nebraska Penal and Correctional

Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed 2d 668, 1979.



       Furlough from prison is not a right. It is a privilege of being temporarily outside of

the institution. Bryson v. State, Tenn. 1990, 793 S.W.2d 252, 256. Bowser v. Vose, 968 F.

2d 105 (5th Cir. 1992).



       T.C.A. § 42-21-227 does not require the department to grant a furlough to all inmates

who apply. It simply enables the department to grant furloughs to those considered worthy

of the privilege “on an individual basis.”




                                             -5-
       This Court agrees with the Trial Court that the petition fails to state grounds for the

courts to force the department to grant a furlough to him or any other prisoner on demand.



       As stated in Carter’s “Motion for the Court to take Judicial Notice,” prisoners may

have a right to request a furlough, but not a right to be granted a furlough. The discretion as

to granting furloughs is left to the department on a case by case basis.



       The judgment of the Trial Court is modified as to costs as heretofore set out. As

modified, said judgment is affirmed. The cause is remanded to the Trial Court for further

proceedings in conformity with this opinion.



                       MODIFIED, AFFIRMED AND REMANDED.



                                                       _________________________________
                                                       HENRY F. TODD, JUDGE




CONCURS:


____________________________
BEN H. CANTRELL, P.J., M.S.


____________________________
WILLIAM C. KOCH, JR., JUDGE




                                               -6-
