                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     May 12, 2000 Session

MARIO HAYWOOD v. TENNESSEE DEPARTMENT OF CORRECTIONS,
                        ET AL.

                  An Appeal from the Chancery Court for Davidson County
                       No. 99-1129-II  Carol L. McCoy, Chancellor



                     No. M1999-02282-COA-R3-CV - Filed April 23, 2001


The plaintiff prison inmate filed pro se petition for declaratory judgment and/or a writ of certiorari
seeking review of prison disciplinary board’s finding of guilt and the punishment relating to a prison
incident. The trial court dismissed the petition for lack of jurisdiction, finding that declaratory
judgment was not available for a review of prison disciplinary proceedings and that the petition for
a writ of certiorari was untimely filed. The trial court also denied the plaintiff’s subsequent petition
to rehear. The plaintiff appeals from the dismissal of his original petition and the denial of his
petition to rehear. We affirm.

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

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S. and ALAN E. HIGHERS, J. joined.

Mario Haywood, pro se.

Paul G. Summers, Attorney General and Reporter; and Abigail Turner, Assistant Attorney General,
Nashville, Tennessee, for the appellee, Tennessee Department of Corrections.

Tom Anderson, Jackson, Tennessee, for the appellees, Alan Bargery, David Harville, and Glenn
Turner.

                                              OPINION

         On October 8, 1998, Petitioner/Appellant Mario Haywood (“Haywood”), an inmate of the
Respondent/Appellee Tennessee Department of Corrections (“TDOC”) and incarcerated at the
Hardeman County Correctional Facility (“HCCF”), appeared before the HCCF Disciplinary Board,
charged with participating in a gang-related assault at the facility. HCCF is a penal facility owned
an operated by Corrections Corporations of America (“CCA”), a private corporation, under contract
with the TDOC to operate the facility. After hearing the evidence, the HCCF Disciplinary Board
(“the disciplinary board”) found Haywood guilty of participating in the assault and recommended
twenty days of punitive segregation, a loss of nine months in Prisoner Sentence Reduction Credits,
and placement on Involuntary Administrative Segregation. Haywood appealed the disciplinary
board’s finding. His disciplinary conviction and the recommended segregation and loss of sentence
reductions credits were subsequently upheld by the TDOC Assistant Commissioner on October 30,
1998, and by the TDOC Commissioner of Corrections on November 25, 1998. On January 18,
1999, Haywood filed a petition with TDOC pursuant to section 4-5-223 of the Uniform
Administrative Procedures Act (“UAPA”), Tennessee Code Annotated § 4-5-101 et. seq., seeking
a declaratory order concerning his disciplinary conviction. TDOC denied this petition on March 3,
1999.

        On April 19, 1999, Haywood filed with the Chancery Court of Davidson County a pro se
Petition for a Declaratory Judgment and/or Writ of Certiorari challenging his disciplinary conviction
and seeking, inter alia, an order vacating the conviction and restoring him from Involuntary
Administrative Segregation to his previous security status. In his petition, Haywood contended that
he was wrongfully convicted because there was no reliable evidence establishing that he participated
in the assault. He alleged that the disciplinary board and other prison officials denied him due
process and violated TDOC policies, state laws, and his rights under the state and federal
constitutions by suppressing material evidence at the disciplinary hearing, failing to submit a
properly completed written summary of the evidence relied upon at the hearing, and depriving him
of sentence reduction credits without evidence of wrongdoing. TDOC filed a motion to dismiss the
petition for lack of jurisdiction under Rule 12 of the Tennessee Rules of Civil Procedure, asserting
that the petition had not been timely filed and that declaratory judgment is not available with respect
to prison disciplinary actions. Respondent/Appellee employees of CCA, Alan Bargery, David
Harville, and Glenn Turner, also filed a motion to dismiss pursuant to Rule 12, for failure to state
a claim upon which relief could be granted.

        The trial court found that declaratory judgment was not available because Haywood was not
challenging the legal validity of the disciplinary rules, but the disciplinary proceedings and the
punishment imposed. The trial court determined that Haywood’s action was more properly
construed as one for certiorari review, yet dismissed the petition for lack of jurisdiction, finding that
it was time-barred because it was filed more than sixty days after the final entry of judgment.
Haywood subsequently filed a petition to rehear, which was denied. Haywood now appeals.

        On appeal, Haywood argues that the trial court erred in dismissing his petition. He contends
that he is entitled to declaratory judgment under the UAPA because the disciplinary board acted
illegally and arbitrarily in reaching the decision to convict him. Haywood also asserts that the trial
court had jurisdiction to review his petition for writ of certiorari because he filed the petition within
sixty days after his petition for declaratory order was denied by TDOC.

       A motion to dismiss for failure to state a claim tests the legal sufficiency of the plaintiff’s
claim. Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn. 1997). The grant of a motion to dismiss may be
affirmed only if the allegations in the plaintiff’s complaint, even if taken as true, fail to state a claim


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upon which the plaintiff would be entitled to relief. Stein v. Davidson Hotel Co., 945 S.W.2d 714,
716 (Tenn. 1997). Therefore, in reviewing a trial court’s grant of a motion to dismiss, all factual
allegations are taken as true, and the trial court’s conclusions of law are reviewed de novo on the
record with no presumption of correctness. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999).

        A prisoner disciplinary proceeding is by definition not a contested case subject to direct
review under the UAPA. Tenn. Code Ann. § 4-5-106(b). The proper method for challenging a
disciplinary action is a petition for a common law writ of certiorari, which must be filed within sixty
days from the entry of the disputed order or judgment. See Rhoden v. State Dep’t of Correction,
984 S.W.2d 955, 956 (Tenn. Ct. App. 1998), perm. to appeal denied Jan. 25, 1999; Tenn. Code Ann.
27-9-102. This sixty-day time period includes the final affirmation by the Commissioner of
Corrections. A’La v. Tennessee Dep’t of Corrections, 914 S.W.2d 914 (Tenn. Ct. App. 1995),
perm. to appeal denied Jan. 8, 1996. Failure to file within the sixty-day period results in a
disciplinary board’s decision becoming final, and deprives a reviewing court of jurisdiction to
entertain the merits of the case under a writ of certiorari. Fairhaven Corp. v. Tennessee Health
Facilities Comm’n, 566 S.W.2d 885, 887 (Tenn. Ct. App. 1976), cert. denied Aug. 16, 1976.

        Haywood categorizes his petition for declaratory judgment as a challenge of the “illegal” and
“arbitrary” actions of the disciplinary board and other prison officials in finding him guilty. The
basis of his petition is that he should not have been found guilty because there was no evidence that
he participated in the assault. He essentially challenges the outcome of the disciplinary proceeding,
his conviction and punishment. Such a review is statutorily excluded from the UAPA’s definition
of a contested case and declaratory judgment is not available. See Rhoden, 984 S.W.2d at 956;
Tenn. Code Ann. § 4-5-106(b).

        Haywood agues that his petition for writ of certiorari was timely filed because it was filed
within sixty days of TDOC’s denial of his petition for a declaratory order. However, as set forth
above, prisoner disciplinary proceedings cannot be reviewed directly under the Uniform
Administrative Act. See Rhoden, 984 S.W.2d at 956. Therefore, Haywood’s final administrative
appeal was exhausted when the Commissioner of Corrections affirmed the conviction on November
25, 1998. Since Haywood did not file his petition until April 19, 1999, nearly five months after the
Commissioner affirmed the conviction, it was time-barred and the trial court properly dismissed the
petition for lack of jurisdiction.

        The decision of the trial court is affirmed. Costs are taxed to the appellant, Mario Haywood,
and his surety, for which execution may issue if necessary.



                                                       ___________________________________
                                                       HOLLY K. LILLARD, JUDGE




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