                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                   On-Briefs January 4, 2002

                ANTHONY J. DOTY v. PATRICK WHALEN, ET AL.

              A Direct Appeal from the Chancery Court for Hardeman County
                 No. 12191     The Honorable Dewey C. Whitenton, Judge



                   No. W2001-01854-COA-R3-CV - Filed February 19, 2002


       Petitioner-inmate filed a petition for writ of mandamus to require the defendants, prison
warden and other officials, to restore visitation privileges of the plaintiff’s girlfriend and to expunge
from the prison records all references to the revocation of the visitation privileges and to the alleged
sexual misconduct that precipitated the revocation. After a nonjury trial, the trial court entered an
order of dismissal. Plaintiff has appealed. We affirm as modified and remand for further
proceedings.



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

Anthony J. Doty, Pro Se

Tom Anderson, Jackson, For Appellee, Percy Pitzer
                                          MEMORANDUM OPINION1

         On January 20, 1999, petitioner, Anthony J. Doty, an inmate at Whiteville Correction Facility
(“WCF”), filed a petition for writ of mandamus against defendants, warden Patrick Whalen2 and
chief of security, Tony O’Hara. The petition alleges that petitioner was issued a disciplinary report
alleging sexual misconduct between petitioner and his fiancé during a visit on November 29, 1998.
Subsequently, petitioner received a visitation change slip stating that his fiancé was removed from
his visiting list for one year, and it was at the instance of defendant O’Hara that she was so removed.
The petition alleges that the petitioner was not provided a hearing within seven days as provided for
in the Inmate Rules and Discipline, Section 15-2.5 H.1, and, in fact, was not provided a hearing at
all. The petitioner avers that punishment by removing his fiancé from his visiting list without a
hearing violated his due process rights. The petition prays that the defendants be required to perform
their duties by:

                    . . . providing Petitioner in writing that the degrading Disciplinary
                    Report of sexual misconduct is dismissed and totally expunged from
                    the record due to lack of due process, that they provide Petitioner in
                    writing that Beth Resop is unconditionally put back on Anthony J.
                    Doty’s visitation list, and that it provided to the Petitioner in writing
                    that all indications of this matter is expunged from any and all
                    records.

(Emphasis in original).

       The respondents were granted additional time by the court within which to answer or
otherwise respond to the petition. A motion to dismiss was filed on behalf of respondents but
apparently was never acted upon. Subsequently, a motion for summary judgment was filed by
respondents in which it is stated:

                            No portion of Respondents’ Answer or affirmative defenses
                    should be deemed waived or abandoned, and Respondents’ right to
                    further present the defenses asserted by Respondents in their Answer
                    is reserved.


        1
            Rule 1 0 of the R ules of the C ourt of A ppeals of Tennessee states:

        This Court, with the concurrence of all judges participating in the case, may affirm, reverse or m odify
        the actions of the trial court by memorandum opinion when a formal opinion would have no
        precedential value. When a case is decided by Mem orandum opinion it shall be designated
        “MEMORANDUM OPINION ”, shall not be pub lished , and shall not be cited or relied on for any
        reaso n in any u nrelated ca se.
        2
           During the course of the proceedings, defendant Whalen was succeeded by Warden Percy Pitzer, and he was
substituted for defendant Wh alen. We w ill use the caption of the case adopted by the plaintiff.

                                                             -2-
The record does not contain any answer filed by the respondents.

        The trial court denied the motion for summary judgment and initially entered an order
holding this cause in abeyance pending the petitioner’s release from incarceration. This Court
accepted an extraordinary appeal from that order and reversed the trial court’s order and remanded
the case for consideration of alternative procedures. The trial court then entered an order to have the
case tried with the use of the petitioner’s deposition.

       A nonjury trial was held March 28, 2001, and on April 24, 2001, the trial court entered its
order which provides as follows:

                       This cause came to be heard on March 28, 2001, before the
               Honorable Dewey C. Whitenton, Chancellor, on the testimony of
               witnesses, the affidavits, and other written evidence submitted by the
               Petitioner, the oral argument of Respondent’s attorney, K. Michelle
               Booth, and the entire record in the cause.

                        IT APPEARING TO THE COURT that the resumption of
               visitation rights sought by Petitioner in his Petition for Writ of
               Mandamus has been granted and accomplished.

                      IT FURTHER APPEARING TO THE COURT that there is
               an additional remedy available to the Petitioner in Federal Court
               under 42 U.S.C. § 1983.

                      IT FURTHER APPEARING TO THE COURT that a Petition
               for Writ of Mandamus does not involve the awarding of monetary
               damages as compensation for injuries, but since the Petitioner is
               appearing pro se, the Court is going to rule on the claim for damages.

                       IT IS, THEREFORE, ORDERED, ADJUDGED AND
               DECREED by the Court, after considering all of the credible proof in
               the cause, that the Petitioner’s claim for damages against Respondent
               is hereby dismissed with prejudice. The Court Costs are to be paid by
               the Petitioner, for which execution and a distress warrant may issue.

                      IT FURTHER APPEARING TO THE COURT that one of the
               Respondents, Tony O’Hara, is no longer employed at Whiteville
               Correctional Facility and Counsel has been unable to locate him.

                     IT IS FURTHER ORDERED by the Court that the Motion to
               Withdraw as Counsel for Respondent, Tony O’Hara, is granted.



                                                 -3-
                        IT FURTHER APPEARING TO THE COURT, that the
                Petitioner has filed a motion for a transcript of all proceedings, and
                that there are no official Court Reporters or transcripts available in
                Tennessee in civil cases, except as arranged by the parties, and that
                there is none available in this case. The Court having previously
                ruled that in a civil case in Tennessee, the Court could not order (1)
                the transporting of the Petitioner for a hearing or trial, or (2) the
                appointment of an attorney to represent him, but that the Petitioner,
                in addition to the testimony of live witnesses, could proceed pro se to
                present his claims by depositions and interrogatories, in accordance
                with the Tennessee Rules of Civil Procedure, rather than waiting until
                his release from incarceration.

                        THEREFORE, since a verbatim transcript of the hearings and
                proceedings in this cause is not available, then the Petitioner, if he
                desires to appeal, must proceed to prepare any record and transcript
                for an appeal as provided by the Tennessee Rules of Appellate
                Procedure.

        Petitioner has appealed, and the issue for review is whether the trial court erred in the
disposition of plaintiff’s action.

         Petitioner asserts that the respondents violated his rights to due process under the Fourteenth
Amendment, First Amendment, and Eighth Amendment to the Constitution of the United States.
As we understand his argument, he is stating that he was denied a hearing on the disciplinary charge
filed against him as is provided for in the Inmate Rules and Discipline established for the prison
facility. He asserts that although the prison officials reinstated the visiting privileges for his fiancé,
such reinstatement did not occur until approximately 337 days after the suspension.

         We reviewed the record, including the statement of the evidence, as supplemented, and
petitioner’s deposition. From our review, we determined that the petitioner testified that he and his
fiancé were not guilty of any sexual misconduct and that he was summarily punished by having her
removed from his visitors list without a hearing. He testified concerning the Inmate Rules and
Discipline, a copy of which is in the record, that he was entitled to a notice of a hearing, and a
hearing on the disciplinary report that had been filed against him. The rules contained in the file
substantiate his testimony in this regard. No evidence to the contrary was introduced by the
respondent. The only evidence by the respondents was introduced by the testimony of Daria
Childress and Julie Bass. Ms. Childress testified that on November 29, 1998, she was employed at
WCF as a central control officer and observed over the video camera the petitioner and his fiancé
in front of the vending machines, and it appeared that his fiancé was fondling petitioner. She advised
Lieutenant Griffin of what she had observed, and he went to the visitation gallery and terminated the
visitation. Ms. Bass testified that she was employed as an internal affairs officer at the WCF and that
in November, 1998, she was employed as the visitation officer. She stated she notified the petitioner


                                                   -4-
of his suspension in writing on December 7, 1998, and although a disciplinary report was issued to
the petitioner, the disciplinary charge became void, because there was no conviction, and petitioner
was not required to serve any segregation time.

        Mandamus is an extraordinary writ and can be resorted to only when other remedies fail.
State v. Thompson, 118 Tenn. 571, 102 S.W. 349 (1907). Although the petitioner apparently did
not seek other judicial remedies, the trial court determined to hear this case as a petition for writ of
mandamus.

        Petitioner makes some reference in his brief to a claim for damages, and the trial court did
adjudicate such a claim. The trial court did note, however, and we agree, that damages are not
ordinarily recoverable in mandamus proceedings. See Paduch v. City of Johnson City, 896 S.W.2d
767 (Tenn. 1995). In any event, we have reviewed the statement of the evidence and there is simply
no proof introduced by petitioner of any damages sustained, and the evidence does not preponderate
against the trial court’s finding. Tenn.R.App.P. 13(d).

       As noted by the trial court, the visitation rights suspended were restored prior to the
suspension’s expiration. Thus, petitioner’s request for relief in this regard is moot. The principle of
mootness is especially applicable to a mandamus action which is a discretionary remedy in any
event. See State v. Thomas, 585 S.W.2d 606 (Tenn. 1979).

       The other area of relief sought by petitioner is the expungement from his records of all
references to the disciplinary action and the precipitating event therefor.

         It is undisputed that petitioner was not afforded a hearing, as provided for in the Inmate Rules
and Discipline. Prison inmates have no absolute constitutional right to visitation. Limitations upon
visitation may be imposed if they are necessary to meet penological objectives. See Bellamy v.
Bradley, 729 F.2d 416 (6th Cir. 1984).

         In the instant case. the petitioner was punished without a hearing by the deprivation of
visitation privileges, and the failure of the respondents to follow their own rules could constitute a
violation of due process of law. See King v. Higgins, 370 F. Supp. 1023 (D. Mass. 1974). As
previously noted, Julie Bass, internal affairs officer at WCF, testified that the disciplinary charge
against the petitioner became void. Since petitioner was denied a hearing, this is conclusive. Section
15-2.5 (j) provides:

                Expungement
                If an inmate/resident is found not guilty of an offense, major or
                minor, either after the hearing or the appeal, all reference to that
                offense would be removed from their file.

       Under this rule, petitioner is entitled to have the expungement he seeks. In King v. Higgins,
supra, the Court determined that because of the failure of the prison officials to follow the


                                                  -5-
established procedures for disciplinary action, the inmate’s prison records should be expunged “of
all findings and conclusions of the board.”Id. at 1029. The Court noted that such expungement is
required, because a prisoner’s “disciplinary record may follow him throughout the prison system;
if his punishment was without cause, he is punished anew each time his record is used against him.”
Id.

         Accordingly, the order of the trial court entered April 24, 2001 is modified to require the
expungement from the petitioner’s record all references to the subject disciplinary report and
visitation revocation and alleged sexual misconduct that precipitated the revocation and report. As
modified, the order of the trial court is affirmed. The case is remanded to the trial court for such
further proceedings as may be necessary, including the entry of an order requiring the expungement
ordered by this Court. Since the litigation was occasioned by failures on the part of the respondents
to follow their own internal rules, the costs of the appeal and the costs incurred in the trial court are
assessed against the respondents, Percy Pitzer and Tony O’Hara, and the trial court on remand shall
amend its order accordingly.



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




                                                  -6-
