                      IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE
                                   Assigned on Briefs January 31, 2003

                  MARCUS N. LEWIS v. TENNESSEE DEPARTMENT
                            OF CORRECTION, ET AL.

                          Appeal from the Chancery Court for Davidson County
                            No. 00-2909-III  Ellen Hobbs Lyle, Chancellor


                           No. M2002-00608-COA-R3-CV - Filed May 20, 2003


This appeal involves a disciplinary proceeding at the South Central Correctional Facility. After
being sentenced to five days disciplinary segregation for interfering with an officer’s duties, the
prisoner filed a petition for a common-law writ of certiorari in the Chancery Court for Davidson
County. The trial court granted the Department of Correction’s motion for summary judgment and
dismissed the petition. We affirm the dismissal of the prisoner’s petition, although on different
grounds than those relied upon by the trial court.1

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

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN , J. joined.
PATRICIA J. COTTRELL, J., filed a concurring opinion.

Marcus N. Lewis, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Arthur Crownover II, Senior Counsel, for the
appellee, Tennessee Department of Correction.

                                                         OPINION

                                                               I.

        Marcus Lewis pleaded guilty to second degree murder and especially aggravated robbery in
1993 and was sentenced to serve two consecutive twenty-five year sentences.2 Mr. Lewis is currently
a prisoner at the Northeast Correctional Facility in Johnson County.



         1
            The Court of Appeals may affirm a judgment on different grounds than those relied on by the trial court when
the trial court reach ed the corre ct result. Continental Cas. Co. v. Sm ith, 720 S.W .2d 4 8, 50 (Te nn. 19 86); Arn old v. City
of Chattanooga, 19 S .W .3d 7 79, 7 89 (Tenn. Ct. A pp. 1 999 ); Allen v. Na tional Ba nk of Newport, 839 S.W.2d 763, 765
(Tenn. C t. App . 199 2); Clark v. Metropolitan Go v’t, 827 S.W .2d 312, 317 (Tenn. Ct. App. 1991 ).

         2
          His later collateral attack on his guilty pleas proved unsuccessful. Lew is v. State, No. 03C01-9704-CR-00132,
199 7 W L 78 990 8, at *1 (Tenn. Crim. Ap p. Dec. 23 , 199 7) (N o T enn. R . App . P. 11 application filed ).
        On March 21, 2000, while incarcerated at the South Central Correctional Facility in Wayne
County, Mr. Lewis obtained permission to wear a small black ribbon on his prison shirt in memory
of some recently deceased friends. As he was leaving the prison cafeteria, the warden and a
corrections officer attempted to question him about the significance of the black ribbon. Mr. Lewis
became argumentative and broke off the discussion. The officials pursued him as he walked away
to continue their inquiry.

        As a result of this incident, Mr. Lewis was charged initially with participating in a security
group threat and was placed in disciplinary segregation pending a disciplinary hearing. On March
22, 2000, after the prison disciplinary board dismissed the “security group threat” charge, the prison
officials charged Mr. Lewis with a less serious disciplinary infraction – interfering with an officer’s
duties. Following a hearing on March 24, 2000, the disciplinary board found Mr. Lewis guilty of
interfering with an officer’s duties and sentenced him to five days in administrative segregation. The
Commissioner’s designee approved the Board’s decision,3 as did the warden and the Commissioner
of Correction.

        Mr. Lewis filed a petition for a common-law writ and statutory writ of certiorari in the
Chancery Court for Davidson County on September 14, 2000.4 He alleged several due process
violations and asserted that the disciplinary board had acted arbitrarily, illegally, and capriciously.
Rather than filing the record of the prison disciplinary proceeding, the Department moved to dismiss
his petition pursuant to Tenn. R. Civ. P. 12.02(6). After the trial court dismissed Mr. Lewis’s
statutory writ of certiorari claim, the Department filed a motion for summary judgment predicated
on Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293 (1995). The trial court granted this motion and
dismissed Mr. Lewis’s petition after concluding that his five-day sentence in punitive segregation
did not impose an atypical and significant hardship on him. Mr. Lewis has appealed.

                                                           II.

        This case again requires us to contend with the curious tactics routinely adopted by the Office
of the Attorney General in cases of this sort. The Attorney General insists on complicating otherwise
straightforward proceedings by filing motions to dismiss or motions for summary judgment instead
of simply filing the record of the disciplinary proceeding. As a result, the courts are forced to decide
these cases without an adequate record and with standards of review that are decidedly less favorable


         3
           The South Central Correctional Facility is managed by Corrections Corporation of America. Private prison
operators do not have the authority to discipline priso ners. Tenn. Cod e Ann. § 41-24-110 (5) (1997). Accordingly the
Departm ent’s Uniform Disciplinary Procedures require that all punishments for disciplinary infractions other than verbal
warnings impo sed b y emp loyees of private prison operators must be approved by the Commissioner’s designee. Horton
v. Tenn essee Dep’t of Co rr., No. M 1999-02 798-CO A-R3-CV , 2002 W L 3112 6656, at *6 (Tenn. Ct. Ap p. Se pt. 26,
2002) (N o Tenn. R. Ap p. P. 11 application filed).

         4
           Mr. Lewis filed his petition in the wro ng county. Tenn.C ode Ann. § 41-21-803 (1997) required the petition
to be filed in Wayne County where the South Central Correctional Facility is located. Ha wkins v. Ten nessee Dep't of
Corr., No . M200 1-00 473 -CO A-R3-CV , 200 2 W L 16 777 18, at * 7-8 (Tenn.Ct.App. July, 25, 2002) (No Tenn. R.App.
P. 11 application filed). However, we will not vacate the judgment because Mr. Lewis filed his petition before we
decided Hawkins v. Te nnessee Dep 't of Corr. and b ecause neither party q uestioned ve nue in the trial court.



                                                          -2-
to the Department. The net result is more work for the trial courts, more work for the appellate
courts, and eventually more work for the Office of the Attorney General when decisions are reversed
on procedural grounds that could easily have been avoided.

       We have previously commented at some length about this wasted motion, but so far our
opinions appear to have fallen on deaf ears. See, e.g., Jeffries v. Tennessee Dep’t of Corr., ___
S.W.3d ___, ___, 2002 WL 31890879, at *2-3 (Tenn. Ct. App. 2002); Horton v. Tennessee Dep’t
of Corr., 2002 WL 31126656, at *2; Livingston v. Tennessee Bd. of Paroles, No. M1999-01138-
COA-R3-CV, 2001WL 747643, at *5-7 (Tenn. Ct. App. July 5, 2001) (No Tenn. R. App. P. 11
application filed). Thus, we are left to work with the record we have which includes only the
portions of the record of the disciplinary proceedings filed by Mr. Lewis.

                                                          III.

       Mr. Lewis’s appeal challenges the disciplinary punishment he received on five grounds.
Three of these grounds are undermined by the papers he filed to support his petition. One ground
was not raised in the trial court. The final ground involves a claim that is beyond the scope of a
common-law writ of certiorari.

        Mr. Lewis asserts the proceeding before the disciplinary board violated his due process rights
by (1) not permitting him to call witnesses, (2) producing no evidence that he had committed the
alleged disciplinary infraction, and (3) failing to obtain the Commissioner’s designee’s approval
before he was placed in disciplinary segregation prior to the hearing. Each of these assertions is
inconsistent with the papers Mr. Lewis himself has filed. The disciplinary hearing summary report
shows clearly that Mr. Lewis waived his right to call witnesses as well as his right to have the
reporting official present at the hearing. Accordingly, his first two claims are without merit. With
regard to his third claim, the disciplinary report clearly shows that the Commissioner’s designee
approved placing him in disciplinary segregation on the “interfering with an officer’s duties” charge
on the same day he was charged with this offense. Therefore, his third claim is likewise without
merit because it is contradicted by the disciplinary report.

        Mr. Lewis also challenges the disciplinary proceeding on the ground that the Commissioner’s
designee did not approve the disciplinary board’s decision to place him in disciplinary segregation
for five days. He did not assert this claim in the trial court. Accordingly, Mr. Lewis cannot raise it
for the first time on appeal. Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn.
1991); Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 300 (Tenn. Ct. App. 2001);
Davis v. Tennessee Dep’t of Employment Sec., 23 S.W.3d 304, 310 (Tenn. Ct. App. 1999); Castelli
v. Lien, 910 S.W.2d 420, 429 (Tenn. Ct. App. 1995).5

        Finally, Mr. Lewis asserts that the testimony at his disciplinary hearing failed to establish that
he had committed an offense and that the prison officials had charged him with interfering with an
officer’s duties simply “to cover up the initial mistake of the first infraction.” The defect in this


         5
           W e find no merit in this claim even if Mr. Lewis had properly raised it. In his sworn affidavit of undisputed
facts, Mr. Lewis concedes that the Com missioner’s designee appro ved the disciplinary board’s findings.

                                                          -3-
argument is a procedural one that relates to the inherent limitations in the scope of relief provided
by a writ of common-law certiorari.

        The scope of a common-law writ of certiorari is extremely limited. Courts may not (1)
inquire into the intrinsic correctness of the lower tribunal's decision, Arnold v. Tennessee Bd. of
Paroles, 956 S.W.2d 478, 480 (Tenn. 1997); Powell v. Parole Eligibility Review Bd., 879 S.W.2d
871, 873 (Tenn. Ct. App. 1994), (2) reweigh the evidence, Watts v. Civil Serv. Bd. for Columbia, 606
S.W.2d 274, 277 (Tenn. 1980); Hoover, Inc. v. Metropolitan Bd. of Zoning Appeals, 924 S.W.2d
900, 904 (Tenn. Ct. App. 1996), or (3) substitute their judgment for that of the lower tribunal. 421
Corp. v. Metropolitan Gov't, 36 S.W.3d 469, 474 (Tenn. Ct. App. 2000). 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. Turner v. Tennessee Bd. of Paroles, 993
S.W.2d 78, 80 (Tenn. Ct. App. 1999); Daniels v. Traughber, 984 S.W.2d 918, 924 (Tenn. Ct. App.
1998).

         Mr. Lewis’s argument that the evidence showed that he did not commit the offense and that
prison officials issued the charge to cover up a previous mistake is 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. A common-law writ of certiorari cannot be used to raise these sorts of
issues. Accordingly, Mr. Lewis has failed to state a claim under the common law writ of certiorari
insofar as this claim is concerned.

                                                 IV.

       We affirm the dismissal of Mr. Lewis’s petition and remand the case to the trial court for
whatever further proceedings may be required. We tax the costs of this appeal to Marcus Lewis for
which execution, if necessary, may issue. We also have determined that this appeal is frivolous in
accordance with Tenn. Code Ann. § 41-21-807(c) (Supp. 2001) and Tenn. Code Ann. § 41-21-
816(a)(1) (1997).

                                                       _____________________________
                                                       WILLIAM C. KOCH, JR., JUDGE




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