Gore v. Tennessee Dept. of Correction, M2002-02640-COA-R3-CV.

• Citation: 132 S.W.3d 369
• Decision Date: 06 October 2003
• Docket Number: No. M2002-02640-COA-R3-CV.,M2002-02640-COA-R3-CV.
• Parties: Mark B. GORE v. TENNESSEE DEPARTMENT OF CORRECTION, et al.
• Court: Court of Appeals of Tennessee

132 S.W.3d 369

Mark B. GORE v. TENNESSEE DEPARTMENT OF CORRECTION, et al.

No. M2002-02640-COA-R3-CV.

Court of Appeals of Tennessee, Middle Section, at Nashville.

Assigned on Briefs June 26, 2003.

October 6, 2003.

Permission to Appeal Denied by Supreme Court March 22, 2004.

Mark B. Gore, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General & Reporter and Stephanie R. Reevers, Associate Deputy Attorney General, for the appellees, Tennessee Department of Correction, Warden David Mills, Warden Ricky Bell, Sgt. F/N/U Settles, Employee F/N/U Henry, and Employee F/N/U Hall.

OPINION

WILLIAM B. CAIN, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S., and WILLIAM C. KOCH, JR., J., joined.

Mark B. Gore, an inmate in the Department of Corrections, appeals the action of the Chancery Court of Davidson County in granting a T.R.C.P. rule 12.02(6) motion to dismiss his Petition for a Writ of Certiorari. We affirm the action of the trial court.

Mark B. Gore is an inmate in the Tennessee Department of Corrections. On March 11, 2002, he filed a Petition for a common-law Writ of Certiorari complaining of actions of the prison disciplinary board finding him guilty of attempted escape and sentencing him to thirty days punitive segregation. He alleges that he was tried before the Brushy Mountain State Disciplinary Board on September 21, 1999 on a charge of attempted escape. He further asserts that he received no notice of such charges until the date of the hearing. He alleges that he was convicted on that date of attempted escape and that his appeal to the prison warden was denied on October 7, 1999. He asserts that the trial proceedings were flawed because he was not provided with adequate notice of the charges against him and was denied an opportunity to call certain witnesses, same being Tennessee Department of Corrections Officer Connie Church and attorney Jodie A. Bell. Although the petition for certiorari shows on its face that it was filed long after the expiration of the sixty-day limitation period in Tennessee Code Annotated section 27-9-102, Petitioner further asserts that sections 28-1-105 and 28-1-115 are sufficient to toll the statute of limitations since he had filed an action in the United States District Court for the Middle District of Tennessee under 42 USC § 1983 and that same had been dismissed without prejudice on bases not concluding his right of action.

His Petition for Certiorari was countered by a Tennessee Rule of Civil Procedure rule 12.02(6) Motion to Dismiss asserting,

Respondents, Tennessee Department of Correction and Ricky Bell, move to dismiss the petition pursuant to Rule 12.02 of the Tennessee Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The bases of this motion are that petitioner fails to state a claim for issuance of the common law writ of certiorari as he had no liberty interest protected by due process with respect to his prison disciplinary hearing and that the petition is not timely. In support of this motion, the respondent relies upon a contemporaneously filed memorandum of law. Inasmuch as the petitioner is an inmate in the custody of the Tennessee Department of Correction, the respondent waives oral argument on this motion.

The trial court, on September 26, 2002, granted the Respondent's Motion to Dismiss, holding in pertinent part:

The Court concludes that the petition fails to state a claim upon which relief can be granted. The degree of procedural protection that must be afforded inmates accused of disciplinary infractions depends on the nature of the sanctions involved. An inmate has no liberty interest in remaining free of disciplinary or administrative segregation, as such segregation does not impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 2301, 132 L.Ed.2d 418 (1995). In Sandin the court held that a punishment of 30 days segregation was not an atypical, significant deprivation. 515 U.S. at 485-86 . In Willis v. TDOC, 2002 WL 118970 [1189730] (Tenn.Ct.App.) the Tennessee Court of Appeals, Middle Section, determined that punitive segregation was not an atypical significant deprivation. In Littles v. Campbell, 2002 WL 1284244 (Tenn.Ct.App.) the Court of Appeals, Western Section rejected an inmate's claim that punishment consisting of 30 days punitive segregation and placement in administrative segregation violated his right to due process. In Littles the court explained that unless a prisoner has a vested right in early release, he cannot state a due process claim. "Since Tennessee recognizes no constitutional right to early release, Mr. Littles cannot show that he has suffered a deprivation of a liberty interest."

Applying the Littles case to this matter, the Court is persuaded by the respondents that because the petitioner has no vested right to parole, the effect of the Board's decision upon his consideration for parole is speculative and cannot serve as the basis for a liberty interest protected by the due process clause. Thus, the petitioner's claim that the Board's decision caused him to remain classified to maximum security and resulted in his ineligibility for parole triggering due process protection must fail. Additionally the petitioner's punishment is in keeping with punishment imposed in cases previously determined by the federal courts and the Tennessee Court of Appeals not to implicate due process considerations.

The Court also finds that the petition is time-barred. According to the petition the Board's decision finding the petitioner guilty of attempted escape occurred on September 21, 1999. A subsequent appeal of the Board's decision to Warden David Mills was denied on October 7, 1999. The petition was signed on April 9, 2002. The petitioner, however, claims that his petition is properly before the Court pursuant to Tennessee Code Annotated section 28-1-105 and 115 because he initially sought relief regarding the claims presented here in a 42 U.S.C. § 1983 action filed in federal court. Saving statutes, however, do not apply to suits against the State unless the State specifically consents to and acknowledges that the statute applies to it. Brown v. State, 783 S.W.2[d] 557 [567] (Tenn.App.1989); Webster v. Tennessee Board of Regents, 902 S.W.2d 412, 414 (Tenn.Ct.App.1995).

It is therefore ORDERED that the respondents' motion to dismiss is granted on the grounds that the petition is time-barred and fails to state a claim upon which relief can be granted. The petition is dismissed with prejudice. Court costs are assessed against the petitioner, for which execution may issue if necessary.

Petitioner timely appealed.

A Tennessee Rule of Civil Procedure rule 12.02(6) motion serves the same function as did a demurrer in common-law pleading. State ex. rel. Canale v. Minimum Salary Dept. of AME Church, Inc., 477 S.W.2d 11 (Tenn.1972). Both prior to the advent of the Tennessee Rules of Civil Procedure and subsequent thereto, a motion to dismiss and a demurrer are subject to the same strict rules of construction.

It is held in a number of our cases that a motion to dismiss a petition for certiorari is to be treated like a demurrer and on such motion the allegations of the petition are to be treated as true except as to facts shown by the record. In Wilson v. Moss, 54 Tenn. 417, 419, it is said: "Upon a motion to dismiss a petition for certiorari, the facts stated in the petition are taken to be true, except as to matters contradicted by the record."

Royal Clothing Company v. Holloway, 208 Tenn. 572, 347 S.W.2d 491, 492 (1961).

The Supreme Court of Tennessee long ago stated: "The motion to dismiss involves the question whether the matters stated in the petition shall be tried upon their merits, or not. It is in the nature of a demurrer to other pleadings; and, admitting the facts stated in the petition to be true, it denies that they are sufficient in law to entitle the party to the prayer of the petition. If the motion be well taken, the petition is dismissed; if not, it is retained, and the case, or the matter contained in it, is tried upon its merits." Studdurt v. Fowlkes, 32 Tenn. 537, 538 (Tenn.1852).

The tension inherent between the factual allegations in a petition for a common-law writ of certiorari and a Tennessee Rule of Civil Procedure rule 12.02(6) motion to dismiss, employed as a response thereto, has been repeatedly emphasized in previous decisions of this Court. However, in the wake of our supreme court's decision in Tony Willis, et al. v. Tennessee Department of Correction, a Tennessee Rule of Civil Procedure rule 12.02(6) motion to dismiss has been relegated to minimal utility as a practical vehicle for challenging the petition. See Willis v. TDOC, 113 S.W.3d 706, 710-11 (Tenn.2003). Like the demurrer before it, a Tennessee Rule of Civil Procedure 12.02(6) motion presents to the court—trial or appellate—only a question of law. As the Supreme Court held in Willis:

The sole purpose of a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss is to test the sufficiency of the complaint, not the strength of the plaintiff's evidence. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.1999); Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn.1997). When reviewing a dismissal of a compliant under rule 12.02(6), this Court must take the factual allegations contained in the complaint as true and review the trial court's legal conclusions de novo without giving any presumption of correctness to those conclusions. See e.g., Doe v. Sundquist, 2 S.W.3d at 922. Because a motion to dismiss a complaint under rule 12.02(6) challenges only the legal sufficiency of the complaint, courts should grant a motion to dismiss only when it appears that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. See e.g., Trau-Med of...