                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                         Assigned on Briefs December 14, 2000

                      JEFF UTLEY, ET AL. v. JIM ROSE, ET AL.

                    Appeal from the Chancery Court for Davidson County
                       No. 99-3433-II   Carol L. McCoy, Chancellor



                    No. M2000-00941-COA-R3-CV - Filed March 13, 2001


Two prison inmates sued the Assistant Commissioner of Correction and four other correctional
employees for failing to release them from maximum security. The trial court dismissed the suit for
failure to state a claim upon which relief can be granted. We affirm.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                Affirmed and Remanded

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

Jeff A. Utley, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dawn
Jordan, Assistant Attorney General, for the appellee, State of Tennessee.


                                             OPINION

                                           I.
                         A DISPUTE OVER PRISONER CLASSIFICATION

         Jeff A. Utley, a prisoner in the custody of the Department of Correction, was placed in
Involuntary Administrative Segregation (IAS) on March 9, 1997, after a scuffle with four
correctional officers. Mr. Utley was subsequently transferred from Riverbend Maximum Security
Institution, where the incident occurred, to Brushy Mountain State Prison.

         After two years at Brushy Mountain with no disciplinary infractions, the IAS Board at that
facility recommended that Mr. Utley be considered for “phase down,” which involves change to a
less stringent security status. The Warden approved the recommendation. Shortly thereafter, Mr.
Utley was transferred to West Tennessee State Penitentiary (WTSP), but he was not put in a phase
down program. On September 18, 1999, he filed an inmate grievance against the WTSP
administration for its failure to change his security classification. The grievance was denied, and the
denial was ultimately affirmed by Assistant Commissioner of Correction Jim Rose.

                                          II.
                       A LAWSUIT AGAINST CORRECTIONAL EMPLOYEES

       On November 30, 1999, Mr. Utley and another prisoner, Howard Jones, began a long and
convoluted legal process by filing a hand-written pro se “Complaint for Declaratory Judgment and
Monetary Relief” in the Chancery Court of Davidson County. The petitioners asked the court to
order them released from maximum security immediately, and to award them $25,000 in
compensatory damages, and $25,000 in punitive damages. The defendants, named in both their
individual and official capacities, were Jim Rose, WTSP Deputy Wardens Robert Henry and Bruce
Westbrook, Unit Team Manager Charles Piphus, and Case Manager Norman Layne.

        On December 28, 1999, Mr. Utley filed an amended complaint seeking to have his claim
certified as a class action. See Rule 23, Tenn. R. Civ. P. On January 10, 2000, he amended his
complaint again, asking that his claim be brought under the Uniform Administrative Procedures Act
(UAPA), Tenn. Code. Ann. § 4-5-101 et seq. On February 4, the trial court denied Mr. Utley’s
request to transform his case into a class action suit.

        The respondents filed a Motion to Dismiss on February 2, 2000, for failure to state a claim
for which relief can be granted, under Rule 12.02(6), Tenn. R. Civ. P. The motion was accompanied
by a Memorandum of Law, which argued among other things that the court did not have jurisdiction
to grant a declaratory judgment under the circumstances of this case.

        The respondents noted that the courts may not entertain an action for declaratory judgment
against state officers, see Carter v. McWherter, 859 S.W.2d 343 (Tenn. Ct. App. 1993); that as state
employees, the respondents were immune from suit for acts or omissions within the scope of their
employment, see Tenn. Code. Ann. § 9-8-307(h); and that a declaratory judgment may not be
obtained under the UAPA unless the petitioner first petitions the agency (in this case the Department
of Correction) for a declaratory order, and the agency refuses, see Tenn. Code. Ann. § 4-5-225.

        Mr. Utley filed a response to the motion, which showed a marked improvement in legibility
and clarity over his earlier pleadings. He argued that his claim deserved to be examined on its
merits; that the complaint should have been construed liberally in his favor, see Huckeby v. Spangler,
521 S.W.2d 568 (Tenn. 1975); and that since he was acting pro se, the complaint should not have
been dismissed simply because it was inartfully worded or even because it was based upon the wrong
legal theory. Mr. Jones did not sign the response.

       Mr. Utley also attempted to salvage his claim by converting it into a Petition for Writ of
Certiorari, arguing that all the bases for such a writ were present in this case. In particular, he
claimed that in the face of the recommendation that they be placed in the phase down program, the


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defendants did not have the authority to deny the petitioners the recommended change in their
security classification, and that they acted illegally in ignoring Tennessee Department of Correction
Policy #404.10.

        The Chancellor acted on February 25, 2000. Since Mr. Jones had not responded to the
Motion to Dismiss, she dismissed the petition as to him. She also dismissed Mr. Utley’s claim as
to the four named defendants, ruling that the only proper respondent would be the Department of
Correction. She stated as an additional ground for dismissing the claim against Mr. Rose that he had
never been served, and that there had never been a summons issued for him or for the Department
of Correction.

        Mr. Utley filed a Rule 59 Motion to Alter or Amend Judgment and/or Motion to Reconsider.
He argued that under Tenn. Code. Ann. § 27-9-107, the filing of a Petition for a Writ of Certiorari
triggers a duty on the part of the clerk of court to “immediately send . . . a notice of the filing of said
petition and a certified copy thereof” to all the named defendants.

        The final order in this case was filed on March 28, 2000. The trial court conceded that the
Clerk and Master has a duty to notify respondents in a certiorari action, but stated that it was not
done in this case because the petitioners stated that it was a declaratory action, and it was assumed
that it was a declaratory action under the UAPA. The court noted that prisoner security
classifications cannot be challenged through the UAPA. See Mandela v. Campbell, 978 S.W.2d 531
(Tenn. 1998).

         The chancellor also found that Mr. Utley had not asserted any claim which warranted
certiorari review of his classification. She noted that the grant of certiorari is within the discretion
of the reviewing court, and that it is not granted in the absence of unusual or extraordinary
circumstances. She accordingly dismissed the complaint against all the respondents for failure to
state a claim upon which relief can be granted, but vacated that portion of the order of February 25
which dismissed the complaint against Jim Rose for failure to have him served. This appeal
followed.

                                                   III.

                                           ISSUES ON APPEAL
                                       a. Declaratory Judgment

        As the appellees point out, neither of the two declaratory judgment statutes in the Tennessee
Code is applicable to the present case. Tenn. Code. Ann. § 29-14-101, et seq. enumerates a wide
variety of circumstances under which parties may obtain a declaration of their rights. These include
rights arising from deed, will, or written contract, and rights affected by statute or municipal
ordinance.




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        But nothing in the statute indicates that it may be used to bring suit against state officers for
alleged violations of agency rules. In fact, it is well settled that our courts may not entertain an
action for declaratory judgment against state officers under this section. Carter v. McWherter, 859
S.W.2d 343, 346 (Tenn. Ct. App. 1993). Such an action would violate the state’s sovereign
immunity. See Tenn. Code. Ann. § 20-13-102.

        As for declaratory judgment under Tenn. Code. Ann. § 4-5-225 of the UAPA, the Act allows
a party to challenge the legal validity of a statute, rule, or order of an agency, or its application to
specific circumstances, but only if the agency has been made a party to the suit. Mr. Utley has
named five individual employees of the Department of Correction as respondents, but has not named
the Department itself or any agency within the Department.

       Further, in order to maintain a declaratory action under the UAPA, a party must first petition
the agency for a declaratory order, and be refused. Tenn. Code. Ann. § 4-5-225(b). In the present
case, Mr. Utley does not allege that he has submitted any such petition.

                                            b. Certiorari

         A Writ of Certiorari is an order from a superior court to an inferior court to send up a record
for review. It may be granted in circumstances where the inferior tribunal is alleged to have acted
illegally or arbitrarily. However, the writ of certiorari is considered an extraordinary remedy, and
it is not available as of right. Clark v. Metro Government of Nashville, 827 S.W.2d 312, 316 (Tenn.
Ct. App. 1991). The grant or denial of the writ is considered to be within the sound discretion of the
trial court, Boyce v. Williams, 389 S.W.2d 272 (Tenn. 1965), and will not be reversed on appeal
absent abuse of that discretion, McCallen v. City of Memphis, 786 S.W.2d 633, 641 (Tenn.1990).

         Several problems with the present case render issuance of the Writ of Certiorari
inappropriate, impractical, or even illegal. The writ should always be directed to the governmental
agency that is responsible for the actions of which the petitioner complains. See Howard Turner v.
Shirley Campbell, 15 S.W.3d 466 (Tenn. Ct. App. 1999). But Mr. Utley has directed his petition
only against individual employees of the Department of Correction. We have also found no
indications that there has been a hearing before an inferior tribunal that could have produced a record
for the court to review. See Fallin v. Knox County Board of Commissioners, 656 S.W.2d 338 (Tenn.
1983).

        Further, the courts have traditionally been reluctant to interfere in matters of prison
discipline, largely because these are beyond our area of expertise, and are peculiarly within the
competence of prison officials. See Sandin v. Conner, 515 U.S. 472 (1995). However, the courts
have seen fit to intervene where violations of constitutional rights are committed under the cloak of
disciplinary or administrative necessity. See Brooks v. DiFasi, 112 F.3d 46 (2d Cir. 1997).




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                             c. Correctional Policies and Procedures

        If, for the purposes of argument, we put aside the numerous difficulties that make this case
inappropriate for declaratory judgment or review by certiorari, we find that the gravaman of Mr.
Utley’s petition is that he has been kept in Involuntary Administrative Segregation for almost four
years, even though the authorities at Brushy Mountain State Prison recommended that he be
transferred to a less stringent form of custody almost two years ago.

        The petitioner argues that in failing to place him in the phase down program, the respondents
abused or exceeded their authority, and failed to follow the rules of the Department of Correction.
He cites the policy which is indexed with the Policies and Procedures of the Department as #414.10,
and which deals with administrative placement, segregation and release of prisoners.

        The Department has furnished us with a copy of that document, and we have examined it at
length. The policy states that “[a]dministrative segregation may be utilized when the warden
determines an inmate’s presence in the general population poses a serious threat to the security/safety
of the institution, staff or other inmates.” Contrary to Mr. Utley’s argument, we see nothing in that
policy that compels the warden of one institution to follow the recommendations issued by the
warden of another. Perhaps the differences between the security needs of different institutions would
make such a rule inadvisable.

        We note, however, that Index #404.10 requires periodic review by an administrative review
panel to determine whether or not release from administrative segregation should occur, and sets out
the factors for the panel to consider in making its determination. This is consistent with the federal
appeals court’s observation in Brooks v. DiFasi, 112 F.3d 46 (2d Cir. 1997), that in general,
administrative custody is subject to periodic review, while disciplinary confinement is not.
However, we see nothing in the record to indicate whether or not any such reviews have been carried
out at West Tennessee State Penitentiary.

         In short, we have made a thorough examination of the record in this case, and we do not
believe that the petitioner is entitled to declaratory judgment, writ of certiorari, or any other form of
relief that is within our power to give.

                                                  IV.

       The order of the trial court is affirmed. Remand this cause to the Chancery Court of
Davidson County for further proceedings consistent with this opinion. Tax the costs on appeal to
the appellant, Jeff Utley.



                                                _________________________________________
                                                BEN H. CANTRELL, PRESIDING JUDGE, M.S.


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