                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                           Assigned on Briefs September 10, 2002

GREGORY HEDGES v. TENNESSEE DEPARTMENT OF CORRECTION

                      Appeal from the Circuit Court for Davidson County
                         No. 00C-3571 Barbara N. Haynes, Judge


                   No. M2002-00140-COA-R3-CV - Filed December 31, 2002


This appeal involves a prisoner at the Southeast Regional Correctional Facility who was charged
with refusing to take a drug test and attempting to alter the results of a drug test. A prison
disciplinary board sentenced the prisoner to twenty days in disciplinary segregation and ordered him
to pay a four dollar fine for attempting to alter the test results and a twenty-five dollar fine for
refusing to take a drug test. The prisoner filed a petition for common-law writ of certiorari in the
Circuit Court for Davidson County challenging the disciplinary board’s action on the ground that the
Department had not complied with its drug testing policy. He also challenged the twenty-five dollar
fine on the ground that he had not been convicted of refusing to take a drug test. The trial court
granted the Tennessee Department of Correction’s Tenn. R. Civ. P. 12.02(6) motion to dismiss the
petition. In the absence of the disciplinary board’s records, we must presume the truth of the
allegations in the prisoner’s petition that he was not convicted of refusing to take a drug test. Fining
a prisoner for a disciplinary offense of which he was not convicted violates the Department’s
Uniform Disciplinary Procedures and the prisoner’s constitutionally protected property interests.
Therefore, we conclude that the prisoner’s petition states a claim for which relief can be granted.

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

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.

Gregory Hedges, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Mark
A. Hudson, Senior Counsel, Nashville, Tennessee, for the appellee, Tennessee Department of
Correction.

                                              OPINION

                                                   I.

        In January 1985, Gregory A. Hedges and two other persons participated in an armed robbery
in Greeneville, Tennessee. They broke into the home of a bank officer and his wife and, after
terrorizing the couple for four hours, made off with several items of personal property. A Greene
County jury later convicted Mr. Hedges of first degree burglary, two counts of aggravated assault,
two counts of aggravated kidnaping, and two counts of armed robbery. The trial court sentenced him
to serve ninety-six years in the state penitentiary.1 Mr. Hedges was eventually incarcerated at the
Southeast Regional Correctional Facility at Pikeville.

        On October 4, 2000, corrections officers at the Pikeville facility asked Mr. Hedges and his
cell mate, Thomas D. Carter, to submit to a urinalysis for reasonable suspicion drug testing. The
laboratory rejected the specimens provided by both men because they appeared to have been
tampered with. Accordingly, on October 5, 2000, corrections officers requested another sample from
both Mr. Hedges and Mr. Carter. As Mr. Carter was providing a urine sample, a corrections officer
noticed a small black tube under his penis. The officer strip searched Mr. Carter and found a rubber
glove filled with urine connected to a small tube taped to the inside of Mr. Carter’s boxer shorts.
The corrections officers then asked Mr. Hedges to produce a urine sample, but he refused. A pat
down search of Mr. Hedges yielded a sunscreen bottle filled with urine taped to the inside of his
crotch. As a result of this incident, Mr. Hedges and Mr. Carter were charged with refusing a drug
screen and attempting to alter a drug screen, both Class B disciplinary offenses.2

        A prison disciplinary board conducted a hearing and sentenced Mr. Hedges to twenty days
in disciplinary segregation. The board also ordered him to pay a four dollar fine for the Class B
disciplinary conviction and a twenty-five dollar fine for refusing to provide a urine sample for a drug
screening test.3 After Mr. Hedges’s internal appeals proved unsuccessful, he filed a pro se petition
for common-law writ of certiorari in the Circuit Court for Davidson County. 4 He alleged that the
Department had acted arbitrarily by failing to follow its drug testing procedures and by fining him


          1
          Mr. Hedges’s conv iction was subsequently affirmed on ap peal. State v. Hedges, No. 252, 1987 W L 9535 at
*1 (Tenn. Crim. App . Apr. 15, 1987 ), perm. app. denied (Tenn. Sept. 4, 1987). His collateral attacks on his convictions
have proved unsuccessful. Hedges v. State, No. 03C01-911 2-CR -00379, 1993 WL 73723, at *1 (Tenn. Crim. App.
March 10, 199 3), perm. app. denied (Te nn. July 1 2, 19 93); Bickers v. State, 1998 W L 6615 28, at *1 (Tenn. Crim. App.
Sept. 25, 1 998 ), perm. app. denied (Tenn. 1998 ); State v. Hedges, Nos. E1999-01350-CCA-R3-CD, E1999-01323-
CCA-R3-CD , 200 0 W L 14 785 69, at *1 (T enn. C rim. App. O ct. 6, 20 00), perm. app. denied (Tenn. April 24, 2001 ).

          2
          Under Department of Correction administrative policies and pro cedures, prison rule infractions fall into three
classes: A, B, or C. Class A offenses are the most serious offenses, while Class C offenses are the least serious. Tenn.
Dep't of Corr. Policy Index 502.05(VI)(A) (200 0).

          3
           Tenn. Dep’t Corr. Policy No. 506.21 (VI)(H)(2) states that “[i]nmates who refuse to provide a specimen sh all
be charged with the disciplinary infraction ‘Refusal of a Drug/Alcohol Screen.’ Such refusal shall be considered a Class
B o ffense, and the inm ate shall be asse ssed a fee of $25.0 0.”

          4
           Mr. Hedges filed his petition for common law writ of certiorari in the wrong county. In Hawkins v. Tennessee
Dep’t of Co rr., No. M2001-00473-COA-R3-CV, 2002 WL 1677718, at *7-8 (Tenn. Ct. App. July 25, 2002) (No T enn.
R. App . P. 11 application filed ), we co nstrued Tenn. Co de A nn. § 4 1-21 -803 (1997) to require that a lawsuit for a cause
of action accruing while a prisoner is incarcerated must be brought in the county where the facility housing the prisoner
is located. M r. Hedges was ho used at the M organ Co unty Re gional Correctional Facility when he filed his petition in
the Davidson County Circuit Court challenging the disciplinary proceedings at the Southeast Regional Correctional
Facility. Accordingly, it was filed in the wrong court based on our interp retation of Tenn. C ode Ann. § 41-2 1-80 3. W e
will not vacate the judgment in this case because Mr. H edges filed his petition before our decision in Hawkins was filed,
and neither p arty apparently raised the applicatio n of T enn. C ode Ann. § 41-2 1-80 3 either in the trial co urt or o n app eal.



                                                               -2-
twenty-five dollars for refusing to take a drug test when he had only been convicted of attempting
to alter a drug test. Rather than filing the record of the prison disciplinary board’s proceedings, the
Department filed its customary conclusory Tenn. R. Civ. P. 12.02(6) motion to dismiss.5 On January
3, 2002, the trial court entered a perfunctory order granting the Department’s motion to dismiss “for
the reasons set forth in their memorandum.”6 Mr. Hedges has perfected this appeal.

                                                     II.
                                           THE STANDARD OF REVIEW

       We cannot review this appeal using the standards of review normally associated with
common-law writs of certiorari because the Department elected not to address Mr. Hedges’s petition
head on. Instead, as it is so often wont to do, the Department filed a Tenn. R. Civ. P. 12.02(6)
motion asserting that Mr. Hedges’s petition fails to state a claim upon which relief can be granted.
By making this tactical decision, the Department has chosen the tune by which it must now dance.

        The sole purpose of a Tenn. R. Civ. P. 12.02(6) motion to dismiss is to test the sufficiency
of the complaint, not the strength of the petitioner’s evidence. Doe v. Sundquist, 2 S.W.3d 919, 922
(Tenn. 1999); Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986
S.W.2d 550, 554 (Tenn. 1999). It requires the courts to review the complaint alone, Daniel v.
Hardin County Gen. Hosp., 971 S.W.2d 21, 23 (Tenn. Ct. App. 1997), and to look to the complaint’s
substance rather than its form. Kaylor v. Bradley, 912 S.W.2d 728, 731 (Tenn. Ct. App. 1995).
Dismissal under Tenn. R. Civ. P. 12.02(6) is warranted only when the alleged facts will not entitle
the petitioner to relief or when the complaint is totally lacking in clarity and specificity. Dobbs v.
Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992).

         A Tenn. R. Civ. P. 12.02(6) motion admits the truth of all the relevant and material factual
allegations in the complaint but asserts that no cause of action arises from these facts. Winchester
v. Little, 996 S.W.2d 818, 821-22 (Tenn. Ct. App. 1998); Smith v. First Union Nat'l Bank, 958
S.W.2d 113, 115 (Tenn. Ct. App. 1997). Accordingly, courts reviewing a complaint being tested by
a Tenn. R. Civ. P. 12.02(6) motion must construe the complaint liberally in favor of the petitioner
by taking all factual allegations in the complaint as true, Stein v. Davidson Hotel, 945 S.W.2d 714,
716 (Tenn. 1997), and by giving the petitioner the benefit of all the inferences that can be reasonably
drawn from the pleaded facts. Robert Banks, Jr. & June F. Entman, Tennessee Civil Procedure § 5-

         5
             The Department’s motion simply asserted that Mr. Hedges’s petition should be dismissed “pursuant to Tenn.
R. Civ. P. 12.02.” This motion, like many of the motions filed by the Civil Rights and Claims Division in cases of this
sort, fails to comply with the rudimentary requirements of motion practice under the Tennessee Rules of Civil Procedure.
Tenn. R. Civ. P. 7.02(1) requires that motions must “state with particularity the grounds therefor.” For the purposes of
a Tenn. R. C iv. P. 12.02 (6) motion, this means that the moving party must state in its motio n why the plaintiff has failed
to state a claim for which relief can be granted. We have repeatedly reminded the Attorney General that including the
grounds for a Tenn. R. Civ. P. 12.02(6) motion in a separate memorandum of law does not comply with Tenn. R. Civ.
P. 7.02(1). See, e.g., Hickman v. Tennessee Bd. of Paroles, 78 S .W .3d 285, 2 87 (Tenn. Ct. A pp. 2 001 ); Pendleton v.
Mills, 73 S.W .3d 1 15, 1 19 n.7 (T enn. C t. App . 200 1); Robinson v. Clement, 65 S.W .3d 632, 635 n.2 (Tenn. Ct. App.
2001). Our suggestions appear to have gone unheeded.

         6
          By operation of Ten n. R. App. P . 24(a ), the memorandum of law supporting the D epartment’s motion to
dismiss has not been included in the appellate record. Accordingly, we have no way to ascertain what the grounds of
the Department’s motion were.

                                                            -3-
6(g), at 254 (1999). On appeal from an order granting a Tenn. R. Civ. P. 12.02(6) motion, we must
likewise presume that the factual allegations in the complaint are true, and we must review the trial
court’s legal conclusions regarding the adequacy of the complaint without a presumption of
correctness. Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986 S.W.2d
at 554; Stein v. Davidson Hotel, 945 S.W.2d at 716.

                                             III.
                                    THE APPELLATE RECORD

       As we have on two prior occasions, we are constrained to comment on the state of the
appellate record in this case. Because of the Department’s tactical decision not to file the record of
the proceedings of the prison disciplinary board, we are faced with the task of reviewing the trial
court’s denial of Mr. Hedges’s petition with less than a complete record of the disciplinary
proceedings. The Department’s decision, while warranted in narrow circumstances, is discordant
with the traditional and customary procedures governing the consideration of petitions for a writ of
common-law certiorari. Horton v. Tennessee Dep’t of Corr., No. M1999-02798-COA-R3-CV, 2002
WL 31126656, at *2 (Tenn. Ct. App. Sept. 26, 2002) (No Tenn. R. App. P. 11 application filed);
Livingston v. Tennessee Bd. of Paroles, No. M1999-01138-COA-R3-CV, 2001 WL 747643, at *5
(Tenn. Ct. App. July 5, 2001) (No Tenn. R. App. P. 11 application filed). Its practical effect in this
case and others similar to it is to waste the time and resources of the trial and appellate courts.

        Had the Department simply filed the record of the prison disciplinary proceeding, both the
trial court and this court would have been able to determine whether Mr. Hedges is entitled to the
relief he seeks and to rule finally and dispositively on his claims. Without the record, we are left
with only the allegations in Mr. Hedges’s petition and the documents he decided to attach to his
petition. Because the Department filed a motion to dismiss without filing the board’s records, we
must also presume that the allegations in Mr. Hedges’s petition are true – no matter how far-fetched
they may appear on their face. Thus, while the board’s records may very well demonstrate
conclusively that Mr. Hedges was convicted for refusing to take a drug test, the Department’s tactics
require us to presume that he was not. Why the Department would want to paint itself into this
procedural corner is beyond us.

                                       IV.
              THE DEPARTMENT’S ADHERENCE TO ITS DRUG TESTING POLICIES

         Mr. Hedges asserts that he is entitled to judicial relief because the Department’s second
request for a urine sample was not consistent with the Department’s published drug testing policy.
He asserts that the Department effectively amended its policy without notifying him when it decided
to require a second urine sample after the laboratory rejected the first sample because of suspicions
that it had been tampered with. We find no legal merit in this argument for two reasons.

       First, Tenn. Dep’t Corr. Policy No. 506.21(VI)(A)(8)(a) lists five grounds for conducting a
“reasonable suspicion drug or alcohol screening.” Among these grounds are (1) the receipt of
confidential information from a reliable source and (2) unusual actions or behavior by the prisoner.
Receiving information from the testing laboratory that a urine sample has been tampered with


                                                 -4-
amounts to information from a reliable source that a prisoner suspected of drug or alcohol use has
engaged in unusual actions or behavior – that behavior being tampering with the test.

         Second, notwithstanding the information received from the testing laboratory, the Department
could still rely on the information that prompted its decision to request the first urine test. Mr.
Hedges has not asserted that the Department lacked reasonable suspicion to request the first urine
test. Accordingly, we may presume that the Department had sufficient information to warrant its
first request for a urine sample. This information would likewise have been sufficient to justify the
Department’s second request for a urine sample.

                                            V.
                   THE TWENTY -FIVE DOLLAR FINE FOR REFUSING A DRUG TEST

        Mr. Hedges also asserts that his petition states a claim that would warrant relief pursuant to
a common-law writ of certiorari. He asserts that by fining him twenty-five dollars for refusing to
take a drug test when he was convicted only of attempting to alter a drug test violated the
Department’s Uniform Disciplinary Procedures, as well as his due process rights. Instead of
addressing this assertion head on, the Department, relying on Sandin v. Conner, 515 U.S. 472, 115
S. Ct. 2293 (1995), asserts that Mr. Hedges failed to state a claim upon which relief can be granted.
In effect, the Department argues that even if it did fine Mr. Hedges without convicting him of the
underlying offense, Mr. Hedges is not entitled to judicial relief because the punishment he received
is not serious enough to warrant the courts’ attention.

        To the extent that Mr. Hedges is basing his arbitrariness and illegality claim on alleged
procedural due process violations, he must first allege that he has been deprived of an interest
entitled to protection under the Due Process Clause.7 Rowe v. Board of Educ., 938 S.W.2d 351, 354
(Tenn. 1996); Armstrong v. Department of Veterans Affairs, 959 S.W.2d 595, 597-98 (Tenn. Ct.
App. 1997). Disciplinary proceedings are an ordinary part of prison life. The United States Supreme
Court has held that a prisoner’s liberty interests are implicated only when a disciplinary action
imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life,” Sandin v. Conner, 515 U.S. at 486, 115 S.Ct. at 2300-01. Specifically, Sandin v. Conner
involved a prisoner placed in punitive segregation for thirty days, which the Court concluded “did
not work a major disruption in his environment.” Sandin v. Conner, 515 U.S. at 486, 115 S. Ct. at
2300.

       However, this court recently held that the rationale of Sandin v. Conner does not apply to a
prisoner’s due process claims predicated on the loss of a property interest. Jeffries v. Tennessee
Dep’t of Corr., No. M2001-02300-COA-R3-CV, ____ WL ____, at *___ (Tenn. Ct. App. Dec. 31,
2002). We also held that state prisoners have a property interest in the funds in their prison trust
fund accounts, and the due process clause protects that property interest. Jeffries v. Tennessee Dep’t
of Corr., ____ WL ____, at *___. Accordingly, we concluded that the Department must accord
prisoners all the procedural due process rights essential to a fair hearing granted them in its Uniform
Disciplinary Procedures when it undertakes to levy a disciplinary fine against their trust fund


       7
           U.S. Const. amend. XIV, § 1.

                                                 -5-
accounts. Jeffries v. Tennessee Dep’t of Corr., ____ WL ____, at *___. Based on our holding in
Jeffries v. Tennessee Dep’t of Corr., the Department’s reliance on Sandin v. Conner to shield Mr.
Hedges’s twenty-five dollar fine from judicial review is misplaced.

         We have already noted that the Department’s Tenn. R. Civ. P. 12.02(6) motion forces us to
presume that Mr. Hedges’s assertion that he was not convicted of refusing to take a drug screening
test is true. That being the case, the Department had no basis for fining him twenty-five dollars.
According to Tenn. Dep’t Corr. Policy No. 506.21(VI)(H)(2), this fine can only be assessed against
prisoners who refuse to submit to an alcohol or drug screening test. While twenty-five dollars may
not be a great amount of money outside the walls, it is significant to a prisoner who must use it to
pay for various fees, commissary items, copies, postage, and other expenses. Without a basis for
imposing the fine, the Department acted arbitrarily and capriciously and violated Mr. Hedges’s due
process rights when it ordered him to pay the fine. Accordingly, Mr. Hedges’s allegation that he was
fined for an offense of which he was not convicted states a claim for relief.

        The Department’s final cart-before-the-horse argument is that Mr. Hedges is not entitled to
relief because he admitted later in his certiorari petition that he had refused to take the second drug
screening test. This argument misses the point. By virtue of its own Uniform Disciplinary
Procedures, the Department may not punish a prisoner for a disciplinary infraction without first
affording the prisoner a “fair and impartial disciplinary proceeding.” Tenn. Dep’t Corr. Policy No.
502.01(V).8 Prisoners are presumed innocent of the disciplinary charges against them and cannot
be found guilty until the Department proves the charge by a preponderance of the evidence. Tenn.
Dep't Corr. Policy No. 502.01(VI)(E)(2)(I)(1). Only after a prisoner is found guilty of a disciplinary
offense can the prison disciplinary board sentence the prisoner to disciplinary segregation, fine the
prisoner pursuant to policy guidelines, or both. Tenn. Dep't Corr. Policy Nos. 502.01(VI)(E)(3)
(a)(6), 502.01(VI)(E)(3)(a)(13), and 502.01(VI)(E)(3)(a)(14).

        Imposing a fine on a prisoner for a disciplinary offense without first finding the prisoner
guilty of the offense is not a “minor deviation” from the Uniform Disciplinary Procedures. It is
arbitrary conduct that strikes at the heart of the fairness of the disciplinary proceeding. If Mr. Hedges
was not found guilty of refusing a drug screen by a preponderance of the evidence at a disciplinary
board hearing, the Department violated its own policy and the tenants of fairness by fining him
twenty-five dollars for refusing a drug screen.




        8
            Tenn. Dep 't Corr. Policy No . 502.01(V) states as follows:

       Fair and impartial disciplinary proceedings will be administered against inmates charg ed with
       disciplinary infraction s. The pro cedures co ntained herein alone shall govern the disciplinary process.
       This policy is not intended to crea te any additional due pro cess guarantees for inmates beyond those
       which are co nstitutionally 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.

                                                            -6-
                                                          VI.

       We affirm the dismissal of the portion of Mr. Hedges’s petition based on the Department’s
adherence to its drug testing policies. We reverse the dismissal of the portion of the petition
challenging the twenty-five dollar fine and remand the case to the trial court for further proceedings
consistent with this opinion.9 We tax the costs of this appeal to the Tennessee Department of
Correction.



                                                                 _____________________________
                                                                 WILLIAM C. KOCH, JR., JUDGE




         9
           Once this case is remanded, we presume that the trial court will direct the Department to file a record of M r.
Hedges’s disciplinary proceeding. If the record demonstrates that Mr. Hedges was convicted of refusing to take a drug
screening test, the trial court may dismiss Mr. Hed ges’s petition. If, howeve r, the record substantiates M r. Hedges’s
claim that he was not found guilty of refusing to take a drug screening test, the trial court must vacate the twenty-five
dollar fine. Nothing in this opinion, however, will prevent the Department from convening a hearing with regard to the
charge of refusing to take a drug screening test. Should the Department cond uct ano ther hearing, M r. Hedges’s factual
statements in his petition for common-law writ of certiorari can be viewed as adm issions.

                                                           -7-
