                       IN THE COURT OF APPEALS OF TENNESSEE
                                    AT JACKSON
                                   Assigned On Brief September 6, 2001

 JOSEPH CARL PIERCE, SR., ET AL. v. CORRECTIONS CORPORATION
                     OF AMERICA, ET AL.

                       Direct Appeal from the Circuit Court for Hardeman County
                                No. 9295    Jon Kerry Blackwood, Judge



                        No. W2001-00595-COA-R3-CV - Filed December 20, 2001


This is an appeal from an order of the trial court granting a motion to dismiss the complaint for
failure to state a claim upon which relief can be granted. We reverse in part and affirm in part.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in part;
                            Reversed in part; and Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY K. LILLARD , J., joined.

Joseph Carl Pierce, Sr., Pro Se.

Tom Anderson, Jackson, Tennessee, for the appellees, Corrections Corporation of America, Prison
Management Services, Inc, Prison Realty Trust, Inc. and Correctional Management Services
Corporation.

                                           MEMORANDUM OPINION1

       A complaint was filed in this cause on July 25, 2000. On September 8, 2000, a motion to
dismiss was filed in behalf of Defendants, Corrections Corporation of America (CCA), Prison
Management Services, Inc. (PMSI), Prison Realty Trust, Inc. (PRT) and Correctional Management
Services Corporation (CMSC).2


         1
           Rule 10 (Court of A ppe als). Mem orandum Opinion. – (b) The Court, with 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 opin ion w ould have no precedential value. When a case is decided by memorandum opinion it shall be
designated “M EM OR AN DU M OPINION ,” shall not be published, and sha ll not be cited or relied on for any reason in
a subsequent unrelated case.
         2
             No respo nse is included in the record for any of the other Defendants and there is no indication that any of
                                                                                                            (con tinued...)
        The trial court entered an order granting the motion to dismiss for failure to state a claim
upon which relief could be granted pursuant to Rule 12.02(6) Tenn. R. Civ. P. We perceive the issue
to be simply whether or not the trial court erred in granting the motion to dismiss.

        Before addressing the merits of this appeal, we feel that it is necessary to determine the
proper Plaintiff or Plaintiffs. The complaint was signed by Joseph Carl Pierce, Sr. Below the
signature blank he identified himself as “Plaintiffs’ Spokesperson.” The complaint identifies Mr.
Pierce as residing at the Whiteville Correctional Facility in Hardeman County, Tennessee, after
having been convicted of a crime in the State of Wisconsin and sentenced to a term of 23 years. The
complaint also identifies Mr. Pierce as a “jail-house lawyer.” Furthermore, a complaint signed by
an attorney must include the signer’s Tennessee Board of Professional Responsibility number. See
Tenn. R. Civ. P. 11.01. Therefore, we conclude from this record that Mr. Pierce is not an attorney
and therefore cannot properly represent the remaining named Plaintiffs. Furthermore, the Notice of
Appeal was signed solely by Joseph Carl Pierce, Sr., albeit as “Plaintiffs’ Spokesperson.” Therefore,
we will review this action only with respect to Plaintiff Joseph Carl Pierce, Sr.

        The record further contains an amended complaint filed in the trial court on January 25, 2001.
This was several months after the filing of the motion to dismiss. A complaint may be amended
once as a matter of course at any time before a responsive pleading is served. Otherwise a party may
amend only by written consent of the adverse party or by leave of court. See Tenn. R. Civ. P. 15.01.
There is no indication in this record that leave of court was sought to amend the complaint nor was
such relief granted by the trial court. Therefore, we will consider only the complaint filed on July
25, 2000.

                A motion to dismiss a complaint for failure to state a claim upon which relief can be
granted tests the legal sufficiency of the complaint. It admits the truth of all relevant and material
allegations but asserts that such allegations do not constitute a cause of action as a matter of law.
See Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn. 1997). However, “inferences to be drawn from the
facts or the legal conclusions set forth in a complaint are not required to be taken as true.” Id. at 48
(citing Dobb v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992). Obviously, when
considering a motion to dismiss for failure to state a claim upon which relief can be granted, we are
limited to the examination of the complaint alone. See Wolcotts Fin. Serv., Inc. v. McReynolds,
807 S.W.2d 708 (Tenn. Ct. App. 1990). The basis for the motion is that the allegations in the
complaint considered alone and taken as true are insufficient to state a claim as a matter of law. See
Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975). In considering such a motion, the court should
construe the complaint liberally in favor of the plaintiff, taking all the allegations of fact therein as
true. See Cook Uithoven v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934 (Tenn. 1994). The
motion should be denied unless it appears that the plaintiff can establish no facts supporting the
claim that would warrant relief. See Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 1999).


         2
           (...continued)
them were served with process. Therefore, we will conside r only the allegations as to the Defendants which filed the
mo tion to dism iss.

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       The complaint describes Mr. Pierce as residing at the Whiteville Correctional Facility (WCF)
in Hardeman County, Tennessee. After having been convicted in a criminal case in the State of
Wisconsin, he was sentenced on or about November 5, 1991, to a term of 23 years.

        Defendant CCA is identified as a Tennessee Corporation authorized to do business in the
states of Tennessee and Wisconsin. Defendant PRT is identified as a corporation organized under
the laws of the State of Maryland and CMSC as a Tennessee corporation. Each of the latter are
alleged to be authorized to do business in the states of Tennessee and Wisconsin. Defendant PMSI
is identified as a Tennessee corporation.

       Several numerical paragraphs of the complaint state the corporate structures of various
Defendants including mergers and leases among them, as well as allegations of political
contributions, none of which appear to state a claim which would entitle Mr. Pierce to relief.

       The complaint also contains allegations of abusive conduct by CCA staff at facilities located
at Youngstown, Ohio and Columbia, South Carolina. However, there are no allegations that Mr.
Pierce was ever incarcerated at either of those facilities or suffered any injury as a result of the
alleged acts of the Defendants at those facilities.

        It is the position of the appellees that “Plaintiffs filed their complaint seeking to be released
from custody.” Therefore, they argue that the complaint is in reality a petition for writ of habeas
corpus. It is true that a portion of the relief sought in the complaint is release from confinement.
However, as we will explain further that is only a portion of the relief sought. Insofar as the
complaint can be construed as seeking habeas corpus relief, it is well established that habeas corpus
relief for a person incarcerated as a result of having been convicted of a crime is limited and
available in Tennessee only when the face of the judgment or the record of the proceedings upon
which the judgment is rendered reveals that the convicting court was without jurisdiction or authority
over the appellant or that appellant’s sentence of imprisonment has expired. See Hart v. State, 21
S.W.3d 901, 903 (Tenn. 2000); Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Passarella v.
State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). If, from the face of the petition the reviewing
court finds nothing to indicate that the appellant’s challenged convictions might be void or not
entitled to any relief, the court shall dismiss the petition and refuse the issuance of the writ. Tenn.
Code Ann. § 29-21-109 (1980). Habeas corpus proceedings are essentially civil in nature and the
rules of civil procedure are applicable where consistent with Tenn. Code Ann. § 29-21-101 et. seq.
Tenn. R. Civ. P. 12 provides trial courts the authority to dismiss pleadings which fail to state a claim
upon which relief may be granted. It is clear that Plaintiff is not entitled to this relief. As heretofore
stated, the complaint alleges that Mr. Pierce was sentenced in the State of Wisconsin on or about
November 5, 1991 to a term of 23 years. There is no allegation that his sentence has expired or that
the convicting court in Wisconsin was without jurisdiction or authority over him.

       Appellees have not addressed the remaining allegations of the complaint. A motion to
dismiss for failure to state a claim upon which relief can be granted admits the truth of all relevant
and material allegations but asserts that such allegations do not constitute a cause of action as a


                                                   -3-
matter of law. In considering such a motion, we are to construe the complaint liberally in favor of
the plaintiff. Applying this liberal interpretation, in reviewing the complaint we will construe
allegations concerning Plaintiffs and inmates to include Mr. Pierce.

        The complaint alleges that CCA maintains a policy which allows inappropriate use of
electrical shocking devices, kicking and beating inmates, spraying inmates with mace for the sole
purpose of imposing pain and other abusive acts. It is also alleged that inmates were deprived of
drinking water for over 36 hours during a lock down and were deprived of bathing water, water to
flush their toilets for a period in excess of 72 hours and failure to provide medical care. The
complaint further alleges that CCA was negligent in failing to properly supervise and train its
employees. The complaint seeks compensatory and punitive damages. We believe the allegations
set forth above constitute a claim upon which relief may be granted. This opinion is not to be
interpreted as any indication by this Court as to the merits of the allegations but our holding is
merely that the allegations heretofore set forth state a justiciable claim.

       We note that Appellees’ brief contains the following:

                In reviewing whether the evidence supports the Order, the courts follows “.
       . . the traditional rule of viewing the evidence in the light most favorable to the
       prevailing party.” Coal Resources, Inc. v. Gulf & Western Industries, Inc., 865
       F.2d 761, 767 (6th Cir. 1981), amended, 877 F.2d 5 (6th Cir. 1989); Calhoun v.
       Baylor, 646 F.2d 1158, 1160 (6th Cir. 1981). Orders of trial courts are entitled to
       considerable deference, and judgments supported by some competent, credible
       evidence going to all the essential elements will not be reversed by a reviewing court
       as against the manifest weight of the evidence. Adkins v. GAF Corp., 923 F.2d
       1225, 1232 (6th Cir. 1991). Unless the evidence so clearly favors the Appellant that
       reasonable minds could not differ, the trial court should be upheld. SEE Calhoun
       at p. 1160.

Unlike a trial on the merits or a motion for summary judgment, there is no evidence to consider in
reviewing a motion to dismiss for failure to state a claim upon which relief can be granted. This
motion simply tests the legal sufficiency of the complaint.

        The order of the trial court granting the Defendants’ motion to dismiss the complaint for
failure to state a claim upon which relief may be granted is affirmed in part, reversed in part and
remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal
are taxed one-half to the appellant, Joseph Carl Pierce, Sr., and one-half to the appellees, Corrections


Corporation of America, Prison Management Services, Inc., Prison Realty Trust, Inc., and
Correctional Management Services Corporation.




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      ___________________________________
      DAVID R. FARMER, JUDGE




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