# FILED Nov. 17, 19 95 Cecil Crow son, Jr. Appellate Court Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

EARL L. FOX, ) ) Plaintiff /Appella nt, )

) Davidson Chancery ) No. 94-2505-III VS. ) ) Appeal N o. ) 01-A-01- 9506-CH- 00263 TENNESSE

E BOARD OF PAROLES, ) ) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE ROBERT S. BRANDT, CHANCELLOR

For the Plaintiff/

Appellant : For the Defendant/Appellee : Earl L . Fox Charles W . Burson Pro Se Attorney Gene ral and Reporte

r Patrici a C. Ku ssmann Nashville, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 Tenn. Code Ann. § 39-1-702(3) (repealed 1989)
. -2- 

## O P I N I O N
This appeal involves the denial of parole to an inmate serving a twenty-y ear sentence for aggravated rape. T he inm ate file d a petition

for com mon-l aw wri t of certiorari in the Chan cery Court for Davidson C ounty c hallengingthe Tennessee Board of Parole’s deci sion. The tria l court gra

nted the boa

rd’s m otion to dismis s. We affirm

the dism issal beca use the inmate’s p etition fa ils to state

a claim upon which relief

can be gra

nted. A comm

on-law writ of ce

rtiorari cannot be

used to review the in trinsic co rrectness o f the parol e board’s deci sion.
I.
E arl Lee Fox comm

itted a brutal rape on October 30, 1984. His v icti m came to his resi dence looki ng for her grandm other. S he attem

pted to leave after learning that her grandmother no longer lived there, but Mr. Fox forced her into the house, thr

ew her on to a bed, a

nd used a m

achete toforce he

r into submis sion. The victim later es caped and ra n to a local security office for help.
In July 1985, a criminal c ourt jury in Knox County found Mr. Fox guilty

of aggravated rape, an offen se clas sified as a Class X crime at the time. 1 The criminalcou rt ju dge later sentence d Mr. Fox

to serve t

wenty year s in the stat

e pen ite nti ary. The Cour

t of Crim inal Appe als affirmed

t he con viction, a

nd the Tennessee Suprem

e Court de nied his appl ication for perm ission to appe al. State v. Fox , 733 S.W.2d 116 (Tenn. Crim . App. 1987). Mr. Fox i s presently incarcerated in the Carte r County Work Camp.
Mr. Fox had a p arole hearing on July 5, 1994. Thereafter, one board mem ber com mente d that he w as a "ver y viole ntperson." On July 13, 1994, Mr. Fox receive d notice tha

t the entir

e board had decli n ed to parole him. After exhaustinghis adm

inistrativ e appeals , Mr. F ox filed a p etitio n for comm on-law writ of c ertiorar

i in the Cha

ncery Court for Davidson

County . The

parole board responded with a

Tenn. R. Civ. P. 12.02(1) m otion to dismiss for lack of subject matte r jurisdict ion. The trial court dismissed the petition because Mr. Fox was-3-

seeking relief

beyond that avail able under a com mon-l aw wri tof certiorari. Mr. Fox has per

fected this appeal.
II.
We turn firs t to thebasis of t he parole b oard’s motion to dismiss. The board asserted that t he tri al cou rt lac ked s ubject matter ju risd ictio n ove r Mr. Fo x’s petition because it challe nged the intr

insic corr ectness of its decisio n to deny

him parole. The bo ard’s reliance on Tenn. R. Civ . P. 12.02(1) was misplaced. The concept of

subject matt er juri sdiction invo lves a cour t’s law ful authority to adjudic ate a cont

r overs y brought bef ore it. Turpin v. Conner Br os. Excava ting Co. , 761 S.W.2d 296, 297 (Tenn. 1988); Standard Sur. & Casualty Co. v. Sloan , 180 Tenn. 220, 230 , 173 S.W .2d 43 6, 440 (1 943). Subject matter jurisdic tion involves the nature of the c ause of action a nd the reli ef sought, Landersv. Jones , 872 S.W.2d 674, 675 (Tenn. 1994), and can only be conferred on a court by cons titutio nal or legi slative ac t. Kane v. Kane , 547 S.W .2d 559, 56 0 (Tenn. 1977) ; Compu ter Shoppe, Inc. v. State , 780 S.W .2d 729, 73 4 (Tenn. Ct. App. 1989).
Ten n. Code Ann. § 27-8-104( a) (1980) empow ers circ uit courts t o issu e comm on-law writs of

certior ari “ in all civil

cases . . . fr

om any inferior jurisdicti on.” With se veral exc eptions not a pplicable here, T enn. Code Ann. § 16- 11-102(a) (1994) imbues chance ry cou rts with c oncurrent

jurisdic tion over th e civil causes of

action triable in circuit cou rt. Accordi ngly, the board’ s relianc e on Tenn. R. Civ. P. 12.02 (1) wa s not we ll-taken because the trial court had subject matter jurisdic tion to enterta

in petitions for common-law writs of certiorari such as the one filed by Mr. Fox in this case.
III. The erroneous reference to Tenn. R. Civ. P. 12.0 2(1) i n the parol e boar d’s motion to dism iss does not

necess arily undermine the c orrectness of the trial court ’s disposition of

Mr. Fox’ s petition. The basis of the board’ s motio n and of-4-

the trial court’s order was that a com mon-l aw wri t of cert

iorari c ould not beused to review the intri nsic correc tnes s of th e boar d’s decision. This reasoning is more consistent

witha Tenn. R. Civ. P. 12.02(6) motion to dism iss for fa ilure to sta

te aclaim than it is to a Tenn. R. Civ. P. 12.02 (1) motion to dism iss for la ck of subject matter juri sdictio n. Since we constr

ue mot ions inlight of t heir subs tance, Bemis C o. v. Hines , 585 S.W.2d 574, 576 (Tenn. 1979); Pickard v . Ferre ll , 45 Tenn . App. 4 60, 471, 325 S.W .2d 288, 29 2-93 (1959), w e willconstrue both the motion and the order dismis sing the petition as if they were ba sed on Tenn. R . Civ. P . 12.02( 6). Thus , we will review the dismissalof Mr. F ox’s peti tion using the standards applicable to motions to dismiss for failure to state a claim upon which relief can be granted.
A Tenn. R. Civ. P. 12.02 (6) motion tests a complai nt’s sufficien cy. Cook v. Spinnaker’s of Rivergate, Inc. , 878 S.W .2d 934, 93 8 (Tenn. 1994). A compl aint shouldbe dism

issed only

when it c ontains no set of facts tha t w ould entitle

the plaintiff to relief. Pemberton v. American Distilled Spirits Co. , 664 S.W .2d 690, 691 (Tenn. 1984 ). T hus, cour ts must take all w ell-plea

ded allega

tions in the compl aint

as true a

nd must construe t

he com plaint libe

rall y in f avor of the plaintiff. Cook v. Spinnaker’s of Rivergate, Inc. , 878 S.W .2dat 938; Do bbs v. Guenther , 846 S.W.2d 270 , 273 (Tenn. Ct . App. 1992).
A comm on-law writ of

certior ari provides a vehic le for re viewing the parole board ’s decision s. Powell v. Parole Eligibility Review Bd. , 879 S.W .2d 871, 872- 73 (Tenn. Ct. Ap p. 19 94); Brigham v. Lack , 75 5 S. W.2d 46 9, 4 71 (Te nn . Cr im. App. 1988). The scope of review available pursuant to a c ommon- law wr it is, however, extremely

narrow because courts may only re view the proceedin gs to determ ine whether the boardexceede d its juri sdiction or whet her it a cted ill ega lly, frau dul ent ly, or arbitrari ly. Yokley v. State , 632 S.W .2d 123, 12 6 (Tenn. Ct. App. 1981). Thus, a comm

on-law writ of certiorari perm its a court to rev iew th e manner in which th e board re ached its decision but n o t to review the intrins ic correct ness of the decision itself. Powe ll v. Pa rol e Eligibil ity Rev iew Bd. , 879 S.W. 2d at 873; see also State ex rel. McMorrow v. Hunt , 137 Tenn. 243, 250-51 , 192 S.W. 931, 933 (1917).2 Tenn. R. Civ. P. 15.01 permits litigants to amend their plead ings “at any time be fore a responsive pleading

is serve d” and a

lso instructsthe cour

ts that “le ave [to ame

nd] shall be

freely given when justice so requires.” -5- IV.
We now turn tothe questio n of whethe r Mr. F ox’s peti tion states a c laim for relief that can be

granted under a com

mon-l aw petiti on for wr

it of cer tiorari. The petition itself co ntains nothin g but chronol o gical i nformation concerning Mr. Fox’s conviction and the denial o f paro le. It d oes n ot ex plai n how t he bo ard’s decision was bey ond its jur

isdiction or

how it wa s illegal, fraudule nt, or arbi trar y. We apply l ess stringent standar ds to pro se pleadings t

han t o pleadings prepared b y lawy ers. Hughes v. Rowe , 449 U. S. 5, 9- 10, 101 S. Ct. 173, 176 (1980); Haines v. Kernes , 404 U. S. 519, 5 20-21, 92 S . Ct. 594 , 596 (1972); Baxter v. Rose , 523 S.W .2d 930, 939 (Tenn. 1975). Howeve r, even pro se litigants m

ust satisfy applicable s ubstanti ve and proc edural re quirem ents. W hile they cannot shiftthe burden of the litigation to the courts or to thei r adversarie s, pro se litigants a re entitl ed to the sa

me liberality

of constru ction of their pleadin gs that Tenn. R. Civ. P. 1, 8.05, and 8.06 provide to other l itigant s. Irvin v. City of Clarksvil le , 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988). The adequacy

of a com

plaint b eing chal lenged by a Tenn. R. Civ. P. 12.02(6) motion

depends sole ly on the

adequ acy of the allega tions in the compl aint

itself. Cook v. Spinnaker’s of Rivergate, Inc. , 878 S.W.2d at 938. If we were to lim

it our considera

tion to Mr. F ox’s peti tion alone, we would find that i t fails to pass m

uster bec ause it sta

tes no clai m at a

ll. However, Mr. Fox expanded on the substance of his pe tition in his r esponse to th e parole b oard’s motion to dismis s. We h ave determined that Mr. Fox’ s response should be treated as an amen dment

to his origin al petition
. 2
Mr. Fox ’s r esp on se t o t he p aro le b oar d’s moti on demo n strates t hat his petition rests on the holdin g in Mayes v. Tramme ll , 751 F.2d 175, 179 (6th Cir. 1984) that inmates in

Tennesse e’s pri sons have a constitution ally pr otected li berty interest in being paroled. We have recently held, however, that the Mayes v . Tramme lldec is io n h as o nl y li mi ted pres ent value b ecause of the interv ening3 Tenn. R. Civ. P. 8. 01 req uires all pl eaders , incl udin g pro se plaintiffs, to include a "short

andplain statemen t of their claim showing that

the plea der is entitled to relief." Mr. Fox's brief in this court

contains facts that were not included in his original petition or in his response to the board 's motion to dis miss. We hav e not cons idered t hese facts because

they were not proper

ly present ed to the t rial cou rt.
-6- changes in the paro le board’ s regulati ons governingeligibility andconsidera

tion for parole. Kaylor v. Bradley , App. N o. 01-A- 01-9504-CH -00144, slip op. at 6- 7, 20 T.A. M. 34-40(Tenn. Ct. App. Aug. 4, 1995). Inmates in Tennessee no longer have a protected liberty intere st in bein g paroled
. Wright v . Tramm ell , 810 F.2d 589, 591 (6th Cir. 1987).
Even though Mr. Fox may not have a c onstitutional basis for his cl aim, he may be ableto ma

ke out a cla

im fo r relief

by dem onstrating t

hat theboard failed to provide him

witha right

or benefi t to which h e was ent itled under

a state st atute or regulatio n. We

have exam

ined Mr. Fox’s or

iginal petition and

his response

to the p arole boa

rd’s m otion to dism

iss and find

no factua

l allegati on that wou l d warran t relief under a co mm

on-law writ of ce

rtiorari
. 3 Giving his pleadin gs their m ost charitable constr

uction, Mr . Fox appe ars to be taking issue

withthe d enial of his parole on three grounds: (1) the board member’s comm

ent that he was a “very

violent person”; (2) the failure to afford him an opportuni ty to c ha ll enge the c onstitutiona lity of statutory preconditi ons for his parole eligibility; and (3) the denial of an opportunity to present

evidence on his own behalf. None of these reasons, even if true, entitle Mr. Fox to judicial relief. Only

the entire parole boa

rd has the a

uthority to grant or

deny pa role. T enn. Code Ann. § 40-28 -116(a)(1) (Supp. 1995); Tenn. Code Ann. § 40-35-503(a) (Supp. 1995); Tenn. Comp. R. & Regs. r. 1100-1-1-.07(3)(d) (1985). Individual mem bers cannot make these

decisions on

their own , and, ther

efore, the comm

ent of an individual board member cannot be im puted to the entire board unless it is reflectedin the boar

d’s dec ision. Mr . Fox did not allege tha

t the entire board denied him pa

role solely beca

use he wa s a“ver

y viole ntperson,” even though h e couldvery easily have done so since the board was required to provide him

with written reasons for its deci sion. See Tenn. C omp. R. & Re gs. r. 11 00-1-1--7-

.07(3)(b) , (e) (19 85). Accordingly, Mr. Fox’s challenge to the individual board mem ber’s c omm

ent faile d to state a

claim upon which r

elief cou ld be grant

ed. The rem aining two grounds for Mr. Fox’ s petition a

re equally inef

fectual. He did not allege

that hewas denied parole because of the board’s reliance on an unconstitutional statutory preconditi on to parole elig ibility. Simi larly , he did not allegethat the e vidence tha t he wou ld have pre sented to th e board did not duplica te the information alre ady pr ovided to the

board in the

compr ehensive parolesumm

ary r eport pre pared by the institut

ional author

iti e s before every inmate’s parole he aring. Tenn. C ode Ann. § 40-28-106(e)(2) (Supp. 1995). Mr. Fox’s conclusory

allegatio ns are insu fficient to state aclaim that the board acted arbitrar ily by deny

ing the bene fits to whi ch he is entitled by sta tute and re gulation. Reduced to its essenc e, Mr. Fox’s pe tition take s issue wit

h the corr ectness of the board mem

ber’s comm

ent that he is a “very

violent per son.” In a

ddition to failing to allege aconnection between this com ment a nd the board s’s dec ision to denyhim pa

role, Mr . Fox is doi ng nothing m ore than c hallenging t

he intrinsi c correct ness of the comm

ent itself. This is beyond the scope of the rem edies available through a common-law writ of certio rari.
V.
We affirm

the dism issal of Mr . Fox’ s petition f or failur e to st a te a clai m upon which re lief can be grante d and rema nd th e case to the trial

court for whatev erfurther proceedin gs may be requir

ed. W e also tax t

he costs of

this appeal to Earl Lee Fox for which execution, if necessar y, may issue.

_________

__________

______________

_ WILLIAM C. KOCH, JR., JUDGE CONCUR:

_________________

_________________ HENRY F. T ODD, P.J., M.S.

_________________

_________________ SAMUEL L. LEWIS, JUDGE