### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Februar y 23, 2001 Se ssion
TRACY McGOWAN

v. DOCTOR R. CRANTS and ALAN BARGERY
An Appeal from the Circuit Court for Hardeman County No. 9041 Jon Kerry Blackwood, Judge

No. W2000-02398-COA-R3-CV - Filed February 6, 2002

This is a civil lawsuit filed by a prisoner. Th e inmate filed a complaint against the prison warden and the chairman of the board of the company w hich owns and operates the prison, alleging negligence and viola

ti ons of his constit

utional ri ghts. The

inmate mov ed for de

fault judg ment, which was denied. The defendants then filed a motion for summary judgment, asse rting that there
were no mat erial fa

cts in dispute. The trial court granted the defendants’ motion for summary judgment. The inmate now appeals. We reverse, f inding that there are genuine issues of material fact. Tenn. R. App.P. 3; Judgm ent of the Circuit C ourt is Re

versed a nd Remande d.

H OLLY K IRBY L ILLARD , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined. Tracy McGowan, pro se. Tom Anderson, Jackson, Tennessee, for the appe llees Doctor R. Crants and Alan Bargery.
OPINION

This is a civil l awsuit fi led by a pr isoner. O n April 8,1 999, plain ti ff/appe lla nt Tracy McGowan(“McGowan), an inmate at the Hardeman County Correctional Facility (“HCCF”), filed suit against defendant/appellees Alan Bar gery and Doctor R. Crants (collectively “the defendants”), alleging negligence and violation of his righ ts under t he First, E

ighth, and Fourteen th Amendme

nts to the United States Constitution. Alan Bargery (“Bargery”), at all relevant times, was warden of HCCF. Doctor R. Crants is chairmanof the board for Corrections Corporations of America, whic h owns and operates HCCF. In the complaint, McGowan alleged that, as a result o f the def endants’ negligent failure to provide him with a secure condition of confinement, he wa s attacked by another inmate at the fa cility, sus taining inj uries to h is face and mouth. Mc Gowan, a medium- security-2-

inmate, asserted that the inmate who attacked him was a maximum-security inmate who was known to have a propen sity for vi olence. He alleg ed that, b y housing ma ximum-sec

urity inma

tes with medium-security

inmates, t

he defe ndants placed him in imminent danger of his health and safety, violated his right against cruel and unusual punishment under the Eighth Amendment, and violated his right to eq ual protection under the Fourteenth Amendment. McGowan also claimed that, a s retaliation for filin g an inmat e grie van ce complaint relating to HCCF’s alleged policy of housing medium- and maxim

um-secu rity priso ners in the same facility, the defendants placed him in the
sameliving unit

with the in

mate who h ad attac

ked him, vi olating hisright to re dress his grievances under the F irst Amendment. Documents filed by McGowan indicate that he repe atedly sought treatme nt for the injuries s ustained

in the atta

ck and re ceived o nly perfunctory responses from the correctional facility.

Th e d efenda

nts were granted an exten sion of time

to June 2, 1 999 in whic h to file th

eir Answer. On June 10, 1999, McG owan file d a motion f or defa ult judgment, citing the

defenda nts’ failure to timely file an answer. A hearing was held on the motion for def ault judgment on October 1, 1999. The trial court denied the motionfor default judgment. At the trial court’s direction, the defendants finally filed their answer on that same day.

McGowan filed a number of discov ery

request s, interr

ogator ies and r equests for docu

ments, relating to his allegations that the inmate

who attac

ked him wa s a maximum- security inmate with
a known propensity for violenc e. The defenda nts objec ted to all

of McGow an’s disc overy request s. McGowan filed several motions, explaining how the requested information wa s perti nent to his claims and seeking an order compelling the defendants to produce the information and docu ments sought. The trial court took no action regar ding McGowan’s discovery requests.
On August 9, 2000, the defendants filed a motion for summary j udg ment, supported by a memorandum

of law, an affidavit by Bargery, and a statement of undisputed facts. In their motion for summary judgment, the defendants contended that there was no genuine dispute as to any material fact and that they were entitled to summary

judgment a s a matter

of law. A s to defendant Crants, the defendants noted that McGowan ’s compla

int conta ined no specific allegati ons again st Crants and did not

ass ert that he knew of or was involved in any of the conduct a lleged in the complain t. As to defendant Bargery, the defendants asse rted that the complaint failed to allege that Bargery had any specific knowledge concerning the a ssault agains t Mc Gowan. Rather, it alleged only that Bargery maintained a policy of housing ma

ximum-sec

urity inma

tes with medium-security inmates. In an af

fidavit filed in support of the motion for summary judgment, Bargery asserted that HCCF was a

medium-security fa

cility whic

h housed o nly inmate s classif ied as me dium secu

rity or below. He maintained that there were no maximum-sec urity inmates at HCCF.

McGowan

later fi led a motio n in opposit ion to summary ju dgment, w ith a memorandum of law in support . In an af

fidavit a lso filed with his motion, M cGowan reitera ted his contenti on that, at the t ime he was assaulted, HCCF housed both medium- and maximum-security inmates, a n d named specific inmates whom he alleged were classified as maximum security. He maintained that bothdefendants were aware that inmates withdiffere

nt secur ity levels were be

ing housed

in the same facility. However, on

September 19, 2000, the trial court entered an order granting the defe

ndants’-3-

motion for summa

ry judgme

nt. The order did not include the trial court’s reasons for gr anting the motion. McGowan now appeals.

On appeal, M cGowan first contends that the trial court erred in denying his motion for default judgment, based on

the defe ndants’ f ailure to respond t o his motionsin a timely manner. The trial court has considerable discretion as to whether to gra nt default judgment. See Tenn. R. Ci v
. P. 55 (2000). We do no t find t hat the trial court abused its discretion in declining to grant McGowan’s motion for default judgment.
Next, McGowan

contendsthat the tr

ial cour t erred in grantin g the defendants’ motion for
summa ry judg ment. A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Bain v. Well

s , 936 S. W.2d 618, 622 (Tenn. 1997). The nonmoving party must then demonstrate, by affidavi t o r discovery materia

ls , that there is a genuine, material fact dispute which war rants a trial. The nonmoving party cannot

simply rel

y upon his p leadings

but must set

forth spe cific facts showing that there is a genuine issue of material fact for trial. Byrd v. Ha ll , 847 S.W.2d 208, 211 (Tenn. 1993). Summary ju dgment is o nly appro priate w hen the f acts and th e legal conclusions drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only

questions of law are involved, there is no presumption of correctness regarding
a trial court's grant of summary judgment. Bain , 936 S.W.2d at 622. Therefore, our review of the trial court’s grant of

summary ju dgment is de novo on the record before this Court. Warren v. E state of Kirk , 954 S.W.2d 722, 723 (Tenn. 1997).
Under all of the circumtances in this case, we must conc lude that the granting of summary judgme ntin favor of the defendants was inappropriate . The defendants’ motion alleges tha t McGowan made no specific allegations ag ainst Crants, the cha irman of the board for Corrections Corporation of

America, which owns and operates HCCF, and a lleges only tha

t Bargery , the warden, maintain ed a policy of housing maximum-se curity inmat es with medium-security inmates. B argery ’s affida vit denies that the facility house d maximum-security inmates. However, in his complaint and in the docum

ents and a ffidavit s filed in response to the defendants’ motion, McGowan alleges that the facility

in fact h ouses maximu

m-secur ity inmates, n aming sp ecific inmates, a nd alleg es that bo th Bargery and Cr ants h ad kno wledge of this fact. This appears sufficient to create a genuine issue of material fact whichwould prevent the granting of summary judgment. Moreover, McGowan alleg es that t h e inmate who attacked him had a known propensity for violence and that he was retaliated agains tfor filing a grievance by being once again plac ed in the same living unit with the inmate who attacked him. The de

fendant s’ motion a

nd affid avit

does not a

ddress these allega

tions. This must also be viewed against the backdrop of the trial court’s inaction

in respon se to McGo wan’s e fforts to obtain pertinent discovery.-4-

At the very least, it is not entir

ely clea r that summ ary judgm

ent should

be grant ed in this case, and we are reminded of the Supre me Court’s admonition through Justice Harbison in Evco Corp. v. Ro ss , 528 S.W.2d 20 (Tenn. 1975):

The summary judgment

procedure was designed to provide a quick, inexpensive means of concluding cases, in whole or in part, upon issues as to which there is n o dispute r egardin g the mate

rial facts. Where there does exist a dispu t e as to facts which are deemed materia l by the tri al court , however, or where there is unce rtainty as to whether

there may be such a dispute, the duty of the

trial cou rt is clear. He is to ove rrule any motion for summary judgment in such cases, because summary judgment proceedings are not in any s ense to be view ed as a su

bstitute f or a tria l of dispute d factua

l issues.

Id. at 24-25. Regardl ess of

whether McGowan ultimately amends his complaint to include HCCF and Correct i o ns Corpora

tion of Ame

rica as defenda

nts, under

all of the se circ umstance s, we must conclude that the tr

ial cour t erred in gran ting the defenda nts’ motion

for summa

ry judgmen t.
The decision of the trial court is reversed, and the caus e is remand ed for f urthe r proce edings consistent with this Opinion. Costs are taxed agai ns t the Appellees, Doctor R. Crants and Alan Bargery , and their surety, f or which execution may issue if ne cessary
.

___________________________________ HOLLY KIRBY LILLARD, JUDGE