LUTHER DAVIS,                       )
                                    )
       Petitioner/Appellant,        )        Appeal No.
                                    )        01-A-01-9610-CH-00494
VS.                                 )
                                    )        Wayne Chancery
JIM ROSE, Assistant Commissioner    )        No. 95-9638
of Correction; KEVIN MYERS, Warden; )
and RUSTY HARVILLE, Disciplinary
Board Chairman,
                                    )
                                    )
                                                               FILED
                                    )
       Respondents/Appellees.       )                          February 28, 1997

                                                               Cecil W. Crowson
                     COURT OF APPEALS OF TENNESSEE            Appellate Court Clerk
                       MIDDLE SECTION AT NASHVILLE


APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE

THE HONORABLE JIM T. HAMILTON, JUDGE



LUTHER DAVIS #87045
CCA-SCCF
P. O. Box 279
Clifton, Tennessee 38425-0279
       Pro Se/Petitioner/Appellant

CHARLES W. BURSON
Attorney General and Reporter

ABIGAIL TURNER
Assistant Attorney General
2nd Floor, Cordell Hull Building
426 Fifth Avenue North
Nashville, Tennessee 37243
       Attorney for Respondent/Appellee Jim Rose

TOM ANDERSON
FRANKIE K. STANFILL
P. O. Box 900
Lexington, Tennessee 38351
       Attorneys for Respondents/Appellees
       Kevin Myers and Rusty Harville


                          AFFIRMED AND REMANDED


                                             BEN H. CANTRELL, JUDGE

CONCUR:
TODD, P.J., M.S.
KOCH, J.

                                OPINION
              An inmate in a prison operated by Corrections Corporation of America

was disciplined for allegedly stealing four sausage patties. He filed a petition for Writ

of Certiorari with the chancery court, claiming that the disciplinary proceedings were

defective for several reasons, including a delegation of disciplinary responsibilities to

a private corporation, in violation of Tennessee law. The trial court dismissed the

petition for untimeliness. We affirm the dismissal, but on the alternate ground of

failure to state a claim upon which relief can be granted.



                                      I. The Facts



              Luther Davis is a prisoner housed in the South Central Correctional

Facility in Clifton Tennessee. He was at work in the prison kitchen on November 9,

1995, when a correctional officer on duty in the kitchen observed another inmate

kitchen worker pass a dish cloth to Mr. Davis. The officer took possession of the

cloth, and discovered four sausage patties wrapped inside it. The officer filed a

disciplinary report charging both inmates with larceny. The report on Mr. Davis read

as follows:

              At approx. 0725 on the morning of the above date and time,
              I C/O McClain noticed that I/M Davis 87045 had been passed
              a wash clothe (sic) wrapped over something. I C/O McClain
              asked I/M Davis to unwrap the object to find four sausage
              patties, therefore I am charging I/M Davis with larceny,
              recommend a job drop.



              On November 14, 1995, a disciplinary panel composed of employees

of the Corrections Corporation of America convened to hear the charge against Luther

Davis.   The reporting officer was not present at the hearing.            Mr. Davis was

represented by an inmate advisor, who requested that the report be dismissed

because of its failure to allege facts sufficient to indicate that the sausage patties were

indeed stolen.




                                           -2-
              Mr. Davis pled not guilty to the charge, but did not call any witnesses,

and did not present any evidence in his defense. His advisor stated that the other

inmate had given Mr. Davis the patties to hold while he went to the bathroom. The

board found Mr. Davis guilty of larceny, and recommended that he be given ten days

of punitive segregation, suspended for sixty days, “in an effort to deter future such

behavior,” and that he lose his job in the kitchen. Later that day, Department of

Correction Liaison Sharon Warren reviewed the evidence and approved the

recommendation and punishment.



              On November 26, 1995 the prisoner filed a timely administrative appeal

of the disciplinary board’s decision. On January 5, 1996, Jim Rose, Assistant

Commissioner of Correction, dismissed the appeal. Mr. Davis filed a Petition for Writ

of Certiorari with the Chancery Court of Wayne County on January 25, 1996. The

Chancery Court dismissed the petition, on the ground that it had been filed more than

sixty days after the decision complained of, thus depriving the court of jurisdiction. See

Tenn. Code Ann. § 27-9-102. Fairhaven v. Tennessee Health Facilities Commission,

566 S.W.2d 885 (Tenn.App.1976). This appeal followed.



                                    II. Timeliness



              On appeal, Mr. Davis contends that the trial court erred by calculating

the sixty days within which his petition had to be filed from a beginning date of

November 14, 1995. He argues that his petition was timely, because although it was

filed more than sixty days after Sharron Warren approved the panel’s

recommendation, it was filed less than sixty days after Mr. Rose dismissed his

administrative appeal.



              In Jennings v. Traughber, et al., Appeal No. 01A01-9509-CH-00390

(Filed March 6, 1996), this court ruled for the first time that in actions involving the


                                          -3-
Board of Paroles, the sixty day time limit for filing a Petition for Certiorari does not

begin to run until the administrative appeals process has run its course, and the

Board’s decision accordingly becomes final. As the State points out in its brief, there

has not yet been a case in which an equivalent rule has been announced for

disciplinary proceedings. We find that this case does not require us to decide whether

to extend the rule in Jennings to disciplinary proceedings, because it appears that it

can be decided on other grounds.



                             III. The Disciplinary Panel



              Mr. Davis claimed in his petition that the disciplinary proceedings he was

subjected to were illegal or arbitrary. Such an assertion comes under the purview of

the Writ of Certiorari, which requires that an inferior tribunal send up the record for

review, so that it can be determined if its actions were illegal, fraudulent or arbitrary,

or in excess of its jurisdiction. While these categories overlap somewhat, they all

stand for the principle that what is being challenged is not the intrinsic correctness of

the lower court’s decision, but some fundamental flaw in the manner in which that

decision was reached. Powell v. Parole Eligibility Review Board, 879 S.W.2d 871

(1994); Yokley v. State 632 S.W.2d 123 (Tenn. App. 1981).



              In the present case, the appellant argues that the disciplinary board’s

actions were illegal because the board had no legal authority to discipline prisoners,

and because the board did not afford him the due process to which he was entitled.

We will examine both of these contentions in turn.



              Mr. Davis argues that the disciplinary board could not discipline him

because Tennessee law specificially prohibits the delegation of the power to discipline

prisoners to a private prison contractor. Tenn. Code Ann. § 41-24-110(5). In actuality,




                                          -4-
our legislature has declared a whole range of correctional functions to be off-limits to

private contractors. Tenn. Code Ann. § 41-24-110 reads in its entirety:

              Powers and duties not delegable to contractor.-- No
              contract for correctional services shall authorize, allow or
              imply a delegation of the authority or responsibility of the
              commissioner to a prison contractor for any of the following:
                      (1)    Developing and implementing procedures for
              calculating inmate release and parole eligibility dates;
                      (2)    Developing and implementing procedures for
              calculating and awarding sentence credits;
                      (3)    Approving inmates for furlough and work
              release;
                      (4)    Approving the type of work inmates may
              perform, and the wages or sentence credits which may be
              given to inmates engaging in such work; and
                      (5)    Granting, denying or revoking sentence credits;
              placing an inmate under less restrictive custody or more
              restrictive custody; or taking any disciplinary actions [Acts
              1986, ch. 932, § 10.]




              While apparently approving the efficiencies that the use of private

contractors can bring to prison management, our legislature has recognized that there

are certain correctional functions that may not be appropriately transferred from public

servants to officers or employees of a for-profit corporation.



              It is undisputed that the three members of the panel that investigated Mr.

Davis’ case and recommended punishment were employees of Correction

Corporation of America.     However it appears that the actual power to impose

disciplinary sanctions was retained by a designated employee of the Department of

Correction, who reviewed the panel’s proceedings, and approved its recommendation

in accordance with the rules of the Department.



              While the appellant argues that such an arrangement is nothing more

than an evasion of the requirements of Tenn. Code Ann. § 41-24-110(5), we do not

believe that is so.    The Uniform Disciplinary Procedures promulgated by the

Department of Correction requires the warden of each institution to appoint at least

six institutional employees to serve as members of the disciplinary board. A panel of

                                         -5-
three board members is appointed for each disciplinary hearing. The panel must

include a ranking correctional officer and one employee each from two other job

classifications in the institution.



               The use of individuals who are familiar with the operation of the prison

to conduct disciplinary inquiries appears to us to be consistent with the panel’s fact-

finding function. The requirement that the panel’s findings be reviewed and approved

by a designate of the Department of Correction is not only necessary for compliance

with the statute, but when conscientiously applied, it also provides an important check

on the fairness of the proceedings. The statute and the rules construed together

enable the Department to retain the authority that it is forbidden to delegate, while

allowing the private contractor to apply the experience and expertise of its employees

to the problems of the prisons it manages.



                                      IV. Due Process



               Mr. Davis next argues that he was deprived of due process because the

allegations in the officer’s report were insufficient to support a charge of larceny,

because the reporting officer was not present at the hearing, and because his guilt

was not proven by the preponderance of the evidence. The State has drawn our

attention to a recent decision of the United States Supreme Court, Sandin v.

O’Connor, ___ U.S. ___, 115 S.Ct. 2293, 132 L.Ed 418 (1995), in support of the

proposition that Mr. Davis is not entitled to the protections of constitutional due

process in the present case.



               In Sandin, the Supreme Court examined the degree of procedural

protection that must be afforded to inmates accused of infractions of prison

disciplinary rules. The Court held that it is the nature of the punishment involved that

determines whether the constitutional due process rights which normally attach when


                                           -6-
a deprivation of liberty is threatened apply to disciplinary proceedings in prisons.

Where the punishment threatened imposes an “atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison life,” then the prisoner may be

entitled to the protections of due process. Where the punishment is “within the

parameters of the sentence imposed by a court of law,” constitutional due process

rights are not implicated.



              Mr. Sandin faced the possibility of confinement for thirty days in

disciplinary segregation. The Court found that such a deprivation was within the

range of confinement to be normally expected by one incarcerated in a state

penitentiary, and that it therefore did not trigger the requirements of due process. We

note that the proceedings in the present case involved only ten days of disciplinary

segregation, and that the sentence was suspended. The recommendation of a job

drop also did not trigger due process considerations, as it appears to us that the

assignment of jobs is a discretionary function to be exercised by prison officials.



              While we are persuaded by the Sandin case that Mr. Davis was not

deprived of his constitutional rights, we do not believe that our inquiry must

necessarily end there.       Mr. Davis did not specificially premise his appeal on

constitutional violations, but appears to rely on the procedural rules for disciplinary

hearings, Index # 502.01 et seq., that were established by the Department of

Correction, as part of its Administrative Policies and Procedures. Section V of those

rules reads as follows:

              POLICY:        Fair and impartial disciplinary proceedings will
              be administered against inmates charged with disciplinary
              infractions. . . . This policy is not intended to create any
              additional due process guarantees for inmates beyond those
              which are constitutionally required. Minor deviations from the
              procedures set forth below shall not be grounds for dismissal
              of a disciplinary offense unless the inmate is able to show
              some prejudice as a result and the error would have affected
              the disposition of the case.




                                          -7-
                 It appears to us that even though the above policy seeks to avoid

endowing inmates with any additional rights, it obligates the Department of Correction

and Corrections Corporation of America to substantially comply with its requirements.

An indication of some of those requirements may be found in Section 5 of the rules,

which cannot avoid using the word “rights” when listing what an inmate gives up when

he pleads guilty to a disciplinary charge.

                 c.     The inmate will waive the following rights when signing
                        this agreement:

                        (1)    To personally appear before the disciplinary
                               board

                        (2)    To plead not guilty and to have the case
                               against him/her proven by a preponderance of
                               the evidence presented

                        (3)    To present his/her own version of the facts

                        (4)    To call witnesses in his/her own behalf

                        (5)    To cross-examine his/her accuser and hostile
                               witnesses

                        (6)    To appeal the decision of the disciplinary board
                               and the punishment imposed by the board


                 Examining Mr. Davis’s allegations in light of the requirements listed

above, we find that the proceedings were deficient in some respects, but not to the

degree that would render the chancery court in error in declining to grant him a Writ

of Certiorari.



                 Perhaps the most serious deficiency was the absence of the reporting

officer from the proceedings. However, there is no indication in the record that Mr.

Davis asked for the reporting officer’s presence, or that he requested a seven day

continuance so that the officer’s presence could be obtained, as he was entitled to do

under the rules.



                 As for the disciplinary report, while it may have been deficient in failing

to include details as to why the reporting officer believed he was witnessing a

                                            -8-
larcenous exchange, that deficiency could have been cleared up by the reporting

officer, had he been present. There is no reason to believe that a prison disciplinary

report written by a correctional officer is subject to a test of legal sufficiency similar to

that required of an indictment drafted by a prosecuting attorney.



               Finally, Mr. Davis was entitled to testify and to call witnesses on his

behalf, but he declined to do either. If he had done so, perhaps he could have

presented evidence that would have preponderated against the admittedly scanty

evidence against him.       He does not claim that the panel deprived him of the

opportunity to defend himself, and he cannot blame the panel for the consequences

of his decision not to take advantage of procedures created for his own protection.




                                             V.



               The decision of the trial court is affirmed for the reasons stated above.

Remand this cause to the Chancery Court of Wayne County for further proceedings

consistent with this opinion. Tax the costs on appeal to the appellant.




                                             _____________________________
                                             BEN H. CANTRELL, JUDGE



CONCUR:




_______________________________
HENRY F. TODD, PRESIDING JUDGE



                                            -9-
_______________________________
WILLIAM C. KOCH, JR., JUDGE




                              - 10 -
