IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

ASSIGNED ON BRIEFS MAY 25, 2004

JOHN E. ALLEN v. QUENTON T. WHITE, ET AL.

Direct Appeal from the Circuit Court for Lake County

No. 03-8491 Lee Moore, Jr., Judge

No. W2004-00457-COA-R3-CV - Filed September 23, 2004

This appeal concerns the dismissal of a common law writ of certiorari by the Circuit Court of Lake

County. Appellant, an inmate in the custody of the Tennessee Department of Correction, filed a pro

se Petition for Writ of Certiorari to challenge the results of a prison disciplinary proceeding instituted

against him. The trial court granted Appellee’s motion to dismiss the petition as untimely filed in

violation of the applicable statute of limitations. Forthe reasons stated below, we affirm the decision

of the trial court. 

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

ALAN E. HIGHERS,J., delivered the opinion of the court, in which DAVID R.FARMER,J., and HOLLY

M. KIRBY, J., joined.

John E. Allen, Tiptonville, TN, pro se

Paul G. Summers, Attorney General & Reporter, Michael E. Moore, Solicitor General, Jennifer L.

Brenner, Assistant Attorney General, Nashville, TN, for Appellees
 Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

1

This Court, with the 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 opinion would have no precedential value. When a case is decided by

memorandum opinion it shall be designated “MEMORANDUM OPINION”, shall

not be published, and shall not be cited or relied on for any reason in any unrelated

case.

 At the time of this incident, Mr. Allen shared a cell with another inmate, Mr. James Slate. Prison officials also

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charged Mr. Slate with possession of a deadly weapon. 

 The record is devoid of documentation showing Mr. Allen exercised his right to administrative appeal. The 3

record only contains a letter addressed to Mr. Allen from the TDOC, dated July 23, 2003, in which the TDOC states they

had yet to receive an appeal as of that date. 

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MEMORANDUM OPINION1

I. Facts and Proceedings in the Court Below

John E. Allen (“Mr. Allen” or “Appellant”) is an inmate in the custody of the Tennessee

Department of Correction (“TDOC”) at the Northwest Correctional Complex located in Lake

County, Tennessee. On May 27, 2003, the personnel at the facility conducted a routine

administrative search of Mr. Allen’s cell block. During the search, a prison guard alleged that he

observed a homemade knife come from underneath Mr. Allen’s cell door onto the adjoining

walkway. This led to disciplinary charges being filed against Mr. Allen for possession of a deadly 2

weapon. The prison disciplinary board conducted a hearing on June 6, 2003, resulting in Mr. Allen

being sentenced to disciplinary segregation for a period of ten days. According to Mr. Allen, he

appealed the disciplinary board’s determination to the warden of the facility, Mr. Tony Parker, and

to TDOC Commissioner Quenton T. White (the “Commissioner”), both of whom affirmed the

disciplinary board’s findings. On July 23, 2003, Mr. Allen received a letter from the TDOC 3

Assistant Commissioner of Operations informing him that his sentence would not be extended as

the result of the disciplinary conviction, therefore any future appeal would be denied. 

 

Mr. Allen then filed a Petition for Writ of Certiorari pursuant to Tennessee Code Annotated

sections 27-8-101 and 27-8-102 in the Circuit Court of Lake County on October 22, 2003. Mr. Allen

alleged that his Due Process rights had been violated, and that the disciplinary board failed to follow

TDOC procedures at the administrative hearing. On December 1, 2003, the Commissioner, through

the Office of the Attorney General, filed a Motion for Extension of Time with the circuit court asking

for additional time in which to respond to Mr. Allen’s petition. The circuit court granted the

Commissioner’s motion on December 4, 2003, giving the Commissioner until December 31, 2003,

to file a response. On the same day that the circuit court granted the Commissioner’s Motion for

Extension of Time, the Commissioner filed a Motion to Dismiss pursuant to Tennessee Rule of Civil

Procedure 12.02(6), alleging that Mr. Allen’s petition was barred by the statute of limitations. The

circuit court issued an order on December 11, 2003, giving Mr. Allen until January 18, 2004, to

respond to the Commissioner’s motion. On December 15, 2003, Mr. Allen filed his response to the
 The Commissioner, albeit belatedly, filed a response to Mr. Allen’s Petition for Default Judgment on February

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5, 2004, arguing that a responsive pleading was pending and that, pursuant to Tennessee Rule of Civil Procedure 55.04,

default judgment was improper. 

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Commissioner’s Motion to Dismiss alleging that, pursuant to the Tennessee Rules of Civil

Procedure, his action was deemed filed when he placed it in the hands of the prison officials and that

he had one year in which to file his petition. 

On January 29, 2004, Mr. Allen filed a Petition for Default Judgment with the circuit court

pursuant to Tennessee Rule of Civil Procedure 55, alleging the Commissioner failed to respond to

his Petition for a Writ of Certiorari by the date set forth in the court’s order issued on December 4,

2003. On February 2, 2004, the circuit court entered an order granting the Commissioner’s Motion

to Dismiss and denying Mr. Allen’s Petition for Default Judgment. Mr. Allen filed his notice of 4

appeal to this Court on February, 12, 2004, and presents, as we perceive them, the following issues

for our review:

I. Whether the statute of limitations must be waived when Appellant alleges absolute

innocence of the charges leading to the disciplinary proceedings against him;

II. Whether the circuit court erred by granting the Commissioner’s Motion to Dismiss

without permitting oral argument;

III. Whether the circuit court erred by failing to grant Appellant’s Motion for Default

Judgment against the Commissioner; and 

IV. Whether the circuit court held Appellant, as a pro se inmate, to a stricter standard than

a licensed lawyer.

II. Standard of Review

A motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6) “admits the

truth of all relevant and material averments contained in the complaint, but asserts that such facts

do not constitute a cause of action.” Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.

1997). “The failure to state a claim upon which relief can be granted is determined by an

examination of the complaint alone.” Gunter v. Lab. Corp. of Am., 121 S.W.3d 636, 639 (Tenn.

2003). “When reviewing a dismissal of a complaint 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.” Willis v. Tenn. Dep’t

of Corr., 113 S.W.3d 706, 710 (Tenn. 2003). “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.” Gore v. Tenn. Dep’t of Corr., 132 S.W.3d 369, 373 (Tenn. Ct.

App. 2003). 
 “A prisoner disciplinary proceeding cannot be reviewed directly under the Uniform Administrative Procedures

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Act because the Act removes such proceedings from the definition of a contested case.” Rhoden, 984 S.W.2d at 956;

Tenn. Code Ann. § 4-5-106(b) (2003).

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III. Law and Analysis

“In Tennessee, two types of certiorari exist.” Fairhaven Corp. v. Tenn. Health Facilities

Comm’n, 566 S.W.2d 885, 886 (Tenn. Ct. App. 1976). Mr. Allen presented his Petition for Writ of

Certiorari to the circuit court below pursuant to Tennessee Code Annotated section 27-8-101,

governing common law writs, or in the alternative, Tennessee Code Annotated section 27-8-102,

governing statutory writs. “The common-law writ of certiorari serves as the proper procedural

vehicle through which prisoners may seek review of decisions by prison disciplinary boards, parole

eligibility boards, and other similar administrative tribunals.” Willis, 113 S.W.3d at 712 (citing

Rhoden v. State Dep’t of Corr., 984 S.W.2d 955, 956 (Tenn. Ct. App. 1998)). Therefore, we review 5

Mr. Allen’s appeal under the legal principles governing a common law writ of certiorari.

The trial court is limited in its review of a common law petition for a writ of certiorari in the

following manner:

Once the petition is filed, the court examines the proceedings of the

lower tribunal to determine if that body exceeded its jurisdiction, or

acted illegally, fraudulently, or arbitrarily. Turner v. Tennessee Board

of Paroles, 993 S.W.2d 78 (Tenn. Ct. App. 1999); Yokley v. State,

632 S.W.2d 123 (Tenn. Ct. App. 1981). A challenge to the intrinsic

correctness of the inferior tribunal’s decision is normally dismissed

as being outside the purview of the reviewing court. Hall v. McLesky,

83 S.W.3d 752 (Tenn. Ct. App. 2001); Powell v. Parole Eligibility

Review Board, 879 S.W.2d 871 (Tenn. Ct. App. 1994).

Waters v. Tenn. Dep’t of Corr., No. M2002-00917-COA-R3-CV, 2003 Tenn. App. LEXIS 512, at

*8–9 (Tenn. Ct. App. July 24, 2003). “The issuance by the trial court of a writ of certiorari is not

an adjudication of anything. . . . [, but rather,] is simply a command by the trial court to the inferior

tribunal or administrative agency to send the record made before the agency in the proceeding to the

court for review of that record.” Gore, 132 S.W.3d at 375. The circuit courts of this state have

concurrent jurisdiction over common law petitions for writs of certiorari. Tenn. Code Ann. § 27-9-

103 (2003); Hawkins v. Tenn. Dep’t of Corr., 127 S.W.3d 749, 756 (Tenn. Ct. App. 2002). 

A. Statute of Limitations Applicable to Petition for Writ of Certiorari

In his first issue, Mr. Allen contests the circuit court’s order granting the Commissioner’s

Motion to Dismiss. Mr. Allen argues that any statute of limitations applicable to a common law writ

of certiorari must be waived when absolute innocence of a disciplinary infraction is alleged. Further,
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he asserts that the Tennessee Rules of Civil Procedure set forth a one-year statute of limitations

applicable to his petition. 

“The legislature has the authority to place reasonable statutory limitations on the time within

which certiorari may issue.” Fairhaven Corp., 566 S.W.2d at 886. The legislature has provided that

petitions for writs of certiorari are subject to the following limitations period: 

Such party shall, within sixty (60) days from the entry of the order or

judgment, file a petition of certiorari in the chancery court of any

county in which any one (1) or more of the petitioners, or any one (1)

or more of the material defendants reside, or have their principal

office, stating briefly the issues involved in the cause, the substance

of the order or judgment complained of, of the respects in which the

petitioner claims the order or judgment is erroneous, and praying for

an accordant review. 

Tenn. Code Ann. § 27-9-102 (2003). “This time limit applies to common law as well as statutory

writs.” Fairhaven Corp., 566 S.W.2d at 886. The time limit set forth in the statute is both

mandatory and jurisdictional. Turner v. Tenn. Bd. of Paroles, 993 S.W.2d 78, 80 (Tenn. Ct. App.

1999). Failure to file a petition for writ of certiorari within the time limitation set forth in the statute

results in the disciplinary board’s decision becoming final, and will deprive the circuit court of

jurisdiction. Id.; Bishop v. Tenn. Dep’t of Corr., 896 S.W.2d 557, 558 (Tenn. Ct. App. 1994);

Thandiwe v. Traughber, 909 S.W.2d 802, 804 (Tenn. Ct. App. 1994); Wheeler v. City of Memphis,

685 S.W.2d 4, 6 (Tenn. Ct. App. 1984). 

In responding to the Commissioner’s Motion to Dismiss below, Mr. Allen stated in his reply

that his petition was deemed filed when he delivered it into the hands of the prison officials.

Although he cites to no authority for this proposition in his brief, Mr. Allen is apparently relying on

Tennessee Rule of Civil Procedure 5.06, which provides, in relevant part, as follows: 

If papersrequired or permitted to be filed pursuant to the rules of civil

procedure are prepared by or on behalf of a pro se litigant

incarcerated in a correctional facility and are not received by the clerk

of the court until after the time fixed for filing, filing shall be timely

if the papers were delivered to the appropriate individual at the

correctional facility within the time fixed for filing. This provision

shall also apply to service of paper by such litigants pursuant to the

rules of civil procedure. “Correctional facility” shall include a prison,

jail, county workhouse or similar institution in which the pro se

litigant is incarcerated. Should timeliness of filing or service become

an issue, the burden is on the pro se litigant to establish compliance

with this provision. 
 Although the record contains no reference to the administrative proceedings conducted by the disciplinary

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board on June 6, 2003, the July 23, 2003, letter attached to Mr. Allen’s petition as an exhibit demonstrates that the

disciplinary board’s decision was final by the time he received the letter at the latest. 

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Tenn. R. Civ. P. 5.06 (2003) (emphasis added). Mr. Allen failed to carry this burden. We find

nothing in the record indicating the date on which he presented his petition to prison officials. Even

in the absence of such proof, however, the record sufficiently demonstrates that Mr. Allen failed to

comply with Rule 5.06. Mr. Allen’s Petition for Writ of Certiorari indicates that he signed the

petition on October 15, 2003, and that it was filed with the circuit court on October 22, 2003. Giving

Mr. Allen the benefit of the latest possible date on which the statutory period could possibly begin

to run, July 23, 2003, the petition itself indicates that it was filed well beyond the sixty day period.6

See Johnson v. Corr. Corp. of Am., No. W2001-00763-COA-R3-CV, 2001 Tenn. App. LEXIS 952,

at *9–13 (Tenn. Ct. App. Dec. 11, 2001). Since Mr. Allen filed his Petition for Writ of Certiorari

beyond the sixty day period set forth in Tennessee Code Annotated section 27-9-102, the circuit

court was without jurisdiction to entertain the petition. See Hughes v. Tenn. Bd. of Paroles, No.

M2003-00266-COA-R3-CV, 2004 Tenn. App. LEXIS 78, at *4 (Tenn. Ct. App. 2004). 

Although we find the fact that Mr. Allen filed his petition well beyond the period permitted

by section 27-9-102 of the Tennessee Code to be dispositive of this appeal, we will address the

remaining issues presented out of consideration to Mr. Allen as a pro se appellant. See Young v.

Barrow, 130 S.W.3d 59, 62–63 (Tenn. Ct. App. 2003); Hessmer v. Hessmer, No. M2002-01024-

COA-R3-CV, 2003 Tenn. App. LEXIS 346, at *5–6 (Tenn. Ct. App. May 12, 2003); Irvin v. City

of Clarksville, 767 S.W.2d 649, 651–52 (Tenn. Ct. App. 1988). 

B. Lack of a Hearing Below

The second issue presented for review by Mr. Allen concerns the circuit court’s decision to

grant the Commissioner’s Motion to Dismiss without permitting oral argument. On October 22,

2003, Mr. Allen filed a motion with the circuit court, asking the court to conduct a hearing on his

petition. In the order dismissing Mr. Allen’s petition, the circuit court stated that oral argument was

not necessary in this matter. Mr. Allen argues on appeal that this prevented him from introducing

testimony from another correctional officer at the prison who could establish his innocence. 

The Tennessee Rules of Civil Procedure contain no requirement that a trial court permit oral

argument on a motion to dismiss prior to issuing its ruling. See Jerkins v. McKinney, 533 S.W.2d

275, 279 (Tenn. 1976). “Oral argument is especially unnecessary when only questions of law are

concerned.” Id. (citing Butterman v. Walston & Co., 50 F.R.D. 189, 190 (E.D. Wis. 1970)); see also

Millsaps v. Millsaps, 1989 Tenn. App. LEXIS 317, at *7 (Tenn. Ct. App. May 3, 1989). 

Mr. Allen’s attempt to introduce new evidence amounts to “nothing more than an attack on

the intrinsic correctness of the board’s decision and an effort to have the courts reweigh the evidence

presented to the board.” Lewis v. Tenn. Dep’t Corr., No. M2002-00608-COA-R3-CV, 2003 Tenn.

App. LEXIS 358, at *9 (Tenn. Ct. App. May 20, 2003). “A challenge to the intrinsic correctness of
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the inferior tribunal’s decision is normally dismissed as being outside the purview of the reviewing

court.” Waters, 2003 Tenn. App. LEXIS 512, at *8–9. The scope of review that a trial court

entertaining a common law petition for writ of certiorari may engage in is limited:

Courts may not (1) inquire into the intrinsic correctness of the lower

tribunal’s decision, (2) reweigh the evidence, or (3) substitute their

judgment for that of the lower tribunal. Rather, the writ permits the

courts to examine the lower tribunal’s decision to determine whether

the tribunal exceeded its jurisdiction or acted illegally, fraudulently,

or arbitrarily. 

Lewis, 2003 Tenn. App. LEXIS 358, at *8–9. By simply examining the four corners of Mr. Allen’s

petition, the circuit court properly applied section 27-9-102 of the Tennessee Code and found that

the petition was time barred. Accordingly, this issue raised by Mr. Allen is without merit. 

C. Denial of Appellant’s Motion for Default Judgment

Mr. Allen argues on appeal that, pursuant to Tennessee Rule of Civil Procedure 55, the

circuit court erred by failing to grant his Petition for Default Judgment. (Appellant’s Br. at 7). In

support of this argument, Mr. Allen points to the fact that the Commissioner failed to file a response

to his Petition for Writ of Certiorari by the time set forth in the court’s order issued on December

4, 2003. 

Rule 55 permits the trial court to enter judgment by default against a party when the party

“has failed to plead or otherwise defend as provided by these rules.” Tenn. R. Civ. P. 55.01 (2003).

On the same day the circuit court entered the order granting the Commissioner an extension of time

in which to respond to Mr. Allen’s petition, the Commissioner filed a Motion to Dismiss the petition.

Tennessee Rule of Civil Procedure 12.01 provides, in relevant part, as follows: 

A defendant shall serve an answer within 30 days after the service of

the summons and complaint upon the defendant. . . . The service of

a motion permitted under this rule alters these periods of time as

follows, unless a different time is fixed by order of the court: (1) if

the court denies the motion or postpones its disposition until the trial

on the merits, the responsive pleading shall be served within 15 days

after notice of the court’s action . . . .

Tenn. R. Civ. P. 12.01 (2003). The Commissioner was not required to file a response to the petition

under the rules of procedure until the court below addressed the Motion to Dismiss. Roberson v.

Rose, No. 01-A01-9108-CV-00275, 1991 Tenn. App. LEXIS 950, at *2 (Tenn. Ct. App. Dec. 13,

1991). The circuit court granted the Commissioner’s motion on February2, 2004, thereby disposing

of the case andmaking a response to the petition unnecessary. Furthermore, Tennessee Rule of Civil

Procedure 55.04 provides:
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No judgment by default shall be entered against the State of

Tennessee or any officer or agency thereof unless the claimant

establishes the claim or right to relief by evidence satisfactory to the

court.

Tenn. R. Civ. P. 55.04 (2003); Moffett v. Tenn. Dep’t of Corr., No. M2001-03011-COA-R3-CV,

2002 Tenn. App. LEXIS 844, at *3 (Tenn. Ct. App. Dec. 5, 2002); Northcott v. Tenn. Dep’t of Corr.,

No. 01-A-01-9707-CH-00355, 1998 Tenn. App. LEXIS 277, at *4–6 (Tenn. Ct. App. Apr. 29, 1998).

Mr. Allen failed to do so. 

D. Treatment of Appellant as a Pro Se Litigant

In the final issue presented for our review, Mr. Allen argues that the circuit court erred by

holding him to a higher standard as a pro se litigant than a member of the bar. (Appellant’s Br. at

8). In support of this argument, Mr. Allen cites to the circuit court’s refusal to allow him to amend

his pleadings rather than grant the Commissioner’s Motion to Dismiss. 

“Prisoners have a qualified right to institute and prosecute civil actions in Tennessee’s

courts.” Hessmer, 2003 Tenn. App. LEXIS 346, at *4 (citing Whisnant v. Byrd, 525 S.W.2d 152,

153 (Tenn. 1975)). “Parties who decide to represent themselves are entitled to fair and equal

treatment by the courts.” Id. When a trial court is confronted with a pro se litigant, conducting the

matter before the court can be challenging. Irvin, 767 S.W.2d at 651. “On one hand, a trial judge

must accommodate the pro se litigant’s legal naivete, and, on the other hand, he must not allow the

pro se litigant an unfair advantage because the litigant represents himself.” Id. at 651–52. “Pro se

litigants who invoke the complex and sometimes technical procedures of the courts assume a very

heavy burden.” Id. at 652 (citing Gray v. Stillman White Co., 522 A.2d 737, 741 (R.I. 1987)). The

trial court should take this into consideration when presiding over the matter at issue. Id. “Pro se

litigants are entitled to the same liberality of construction with regard to their pleadings that [the

Tennessee Rules of Civil Procedure] afford any other litigant.” Id. (citing Estelle v. Gamble, 429

U.S. 97, 106 (1976)). The trial court should seek to maintain an equal playing field but should not

be expected to assist a pro se litigant at the expense of the other side. Young, 130 S.W.3d at 63

(citing Edmundson v. Pratt, 945 S.W.2d 754, 755 (Tenn. Ct. App. 1996)); Hessmer, 2003 Tenn.

App. LEXIS 346, at *4–5; Davis v. Earls, No. W2000-00280-COA-R3-CV, 2001 Tenn. App. LEXIS

386, at *7 (Tenn. Ct. App. May 30, 2001). Our review of the record indicates that the circuit court

extended Mr. Allen every possible courtesy and properly handled his Petition for Writ of Certiorari.
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IV. Conclusion

For the foregoing reasons, we affirm the circuit court’s decision to grant the Commissioner’s

Motion to Dismiss. Costs are adjudged against Appellant, John E. Allen, for which execution may

issue, if necessary. 

___________________________________ 

ALAN E. HIGHERS, JUDGE