                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   On-Briefs April 22, 2002

                 LARRY LITTLES v. DONAL CAM PBELL,                         ET AL .

              A Direct Appeal from the Chancery Court for Lauderdale County
                  No. 11,781    The Honorable Martha B. Brasfield, Judge



                        No. W2002-00265-COA-R3-CV - Filed June 5, 2002


        Petitioner, an inmate of the Tennessee Department of Correction, filed a petition for writ of
certiorari, seeking judicial review of a disciplinary hearing at which the disciplinary board found
him guilty of Conspiracy to Violate State Law and sentenced him to punitive segregation. The trial
court granted respondents’ motion to dismiss for, inter alia, failure to state a claim. We affirm.

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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

Larry Littles, Pro Se

Paul G. Summers, Attorney General and Reporter, Arthur Crownover, II, Senior Counsel, For
Appellees. Donal Campbell, James Dukes and Lisa Reynolds

                                            OPINION

       Petitioner, Larry Littles (“Mr. Littles”), is an inmate of the Tennessee Department of
Corrections (“TDOC”). On April 19, 2000, Mr. Littles alleges that senior correctional officers took
him into custody and placed him in segregation as the result of an altercation which occurred that
day between prisoners James Cunningham and Lance Inman. On April 26, 2000, Mr. Littles was
served with a disciplinary report in which he was charged with Conspiracy to Violate State Law.
The report alleged that Mr. Little had hired Mr. Cunningham to assault Mr. Inman.

        Mr. Little requested and was assigned an inmate legal adviser. On May 2, 2000, the prison
Disciplinary Board (the “Board”) conducted a disciplinary hearing at which the Board found Mr.
Little guilty of Conspiracy to Violate State Law. The Board sentenced Mr. Little to thirty (30) days
of punitive segregation and placed him in involuntary administrative segregation for an
undetermined amount of time. On August 9, 2000, Mr. Little filed a Petition for Writ of Certiorari
in Lauderdale County Chancery Court alleging that: (1) the investigating officer had failed to
conduct a proper investigation into the incident which triggered the disciplinary process; (2) there
was insufficient evidence to support the conviction; (3) Mr. Little was denied an impartial
disciplinary tribunal; (4) Mr. Little received inadequate assistance from the inmate adviser assigned
to him; and (5) Mr. Little was unable to contest his placement in segregation. The Petition named
Donal Campbell, TDOC Commissioner, James M. Dukes, Warden of the West Tennessee State
Penitentiary (“WTSP”), and Lisa A. Reynolds, as WTSP correctional officer. Mr. Littles did not
name TDOC as a respondent.

       In response, Respondents filed a Motion to Dismiss, alleging that the only proper respondent
was TDOC, that the Lauderdale County Chancery Court lacked subject matter jurisdiction to
consider the Petition, and that Mr. Littles had no due process rights in the disciplinary hearing. On
October 25, 2000, Mr. Littles filed a Motion for Order Denying Respondents’ Motion to Dismiss.1

        On December 18, 2001, the Chancellor entered an Order of Dismissal. That Order provides,
in relevant part:

                           1.      In a petition for certioriari concerning a disciplinary
                   board decision, the only proper party is the Tennessee Department of
                   Corrections (“TDOC”). See Buford v. Tennessee Dep’t. of
                   Correction, 1999 Tenn. App. LEXIS 755. The Plaintiff sued Donal
                   L. Campbell, James A. Dukes, and Lisa A. Reynolds. The Plaintiff
                   did not sue the TDOC, nor has the Plaintiff filed an amended petition
                   to sue the TDOC.

                          As the TDOC is the only proper party, this lawsuit should be
                   dismissed.

                           2.      The Respondents argue that Davidson County, not
                   Lauderdale County, is the proper venue of this petition. The
                   Respondents cite Bishop v. Conley, 894 S.W.2d 294, 296 (Tenn.
                   Crim. App. 1994), in which a prisoner challenged a disciplinary
                   hearing through a habeas corpus proceeding. This Court disagrees
                   with the Respondents’ arguments and finds that Lauderdale County
                   is the proper venue for this case.




         1
           On February 1, 2001, Mr. Littles filed a Motion for Ruling on his Motion of October 25th, and on April 3,
2001 filed a Petition for Writ of Mandamus in this Court, asking the C ourt to direct th e chan cery court to respo nd to h is
prior motions. On April 11, 2001, this Court entered an Order denying M r. Little’s Petition for Writ of Mandamus and
remanding the case back to the chancery court.

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        3.       The Respondents argue that the common law writ of
certiorari is not proper because the disciplinary board acted neither
unlawfully nor did it violate the Petitioner’s Constitutional rights.

                              *   *     *

         The Petitioner asserts that (a) an improper investigation was
conducted by Corporal Ottinger, (b) there was a lack of sufficient
evidence to support the conviction, (c) he was denied an impartial
disciplinary tribunal, and (d) there was a lack of adequate assistance
by an inmate advisor, Items (a) and (b) deal with the intrinsic
correctness of the decision of the tribunal. It was the decision of the
disciplinary board to determine if the investigation was proper based
upon the testimony it heard. If the disciplinary board had determined
that the investigation was improper and insufficient, it would have
found the Petitioner not guilty of the charges. Item (b) (the lack of
sufficient evidence to support the conviction) deals exclusively with
whether the decision of the disciplinary board was correct. In item
(c), the Petition concludes that the tribunal was not impartial because
he, as a conspirator, received more time in involuntary administrative
segregation than did the perpetrator of the fight. This is the only
supporting evidence that the Petitioner gives for his conclusion of
item (c). The Petitioner’s reasoning is faulty. The fact that the
Petitioner’s sentence was more lengthy that the perpetrator’s is no
reason to conclude that the disciplinary board was not impartial. As
to item (d), the Petitioner supports his statement that his inmate
advisor provided inadequate assistance because, after the hearing, the
inmate advisor lost an affidavit, had the Petitioner file a blank
disciplinary appeal (which was against proper and accepted
procedures), and did not present proper issues in the first appeal to
Commissioner Campbell. The Petitioner makes no statement as to
what the legal advisor did or did not do during the actual hearing that
constituted inadequate assistance. The fact that the advisor did not,
in the Petitioner’s opinion, perfect the appeal and present the proper
issues on appeal is not an indication that the advisor was inadequate
during the hearing before the disciplinary board.

        For the reasons that the Petitioner has named the wrong
respondents and that the Petitioner has failed to set out facts which
show that the disciplinary board exceeded its jurisdiction or acted
illegally, arbitrarily, or fraudulently, the petition for certiorari is
dismissed.



                                  -3-
(footnotes omitted).

        Mr. Littles has appealed. The only two issues before this Court are: (1) Whether the trial
court erred in dismissing the Petition for lack of a proper respondent; and (2) Whether the trial court
erred in dismissing the Petitioner for failure to state a claim that the disciplinary board acted
illegally and arbitrarily. For the following reasons, we affirm the Order dismissing Mr. Littles’
Petition.

        A motion to dismiss a complaint for failure to state a claim upon which relief can be granted
tests the legal sufficiency of the complaint. It admits the truth of all relevant and material
allegations but asserts that such allegations do not constitute a cause of action as a matter of law.
See Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997). Obviously, when considering a motion to
dismiss for failure to state a claim upon which relief can be granted, we are limited to the
examination of the complaint alone. See Wolcotts Fin. Serv., Inc. v. McReynolds, 807 S.W.2d 708
(Tenn. Ct. App. 1990). The basis for the motion is that the allegations in the complaint considered
alone and taken as true are insufficient to state a claim as a matter of law. See Cornpropst v. Sloan,
528 S.W.2d 188 (Tenn.1975). In considering such a motion, the court should construe the complaint
liberally in favor of the plaintiff, taking all the allegations of fact therein as true. See Cook
Uithoven v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934 (Tenn.1994).

        We first address Mr. Little’s second issue: Whether the trial court erred in dismissing the
Petition for failure to state a claim that the disciplinary board acted illegally and arbitrarily.

      In Armstrong v. Tenn. Dep’t. of Corr., No. M2000-02328-COA-R3-CV, 2001 Tenn. App.
LEXIS 428 (Tenn. Ct. App. June 7, 2001), this Court said:

                       As the trial court correctly pointed out, the scope of review
               under a common law writ of certiorari is very narrow. It does not
               involve an inquiry into the intrinsic correctness of the decision of the
               tribunal below, but only as to whether that tribunal has exceeded its
               jurisdiction, or acted illegally, fraudulently or arbitrarily. See Powell
               v. Parole Eligibility Review Board, 879 S.W.2d 871, 873 (Tenn. Ct.
               App. 1994); Yokley v. State, 632 S.W.2d 123 (Tenn. Ct. App. 1981).
               The writ is not available as a matter of right, but is granted under
               unusual or extraordinary circumstances. Clark v. Metro Government
               of Nashville, 827 S.W.2d 312, 316 (Tenn. Ct. App. 1991). Its grant
               or denial is within the sound discretion of the trial court. Boyce v.
               Williams, 389 S.W.2d 272 (Tenn. 1965).

Id., at *4.

Judicial review of the decision of a lower board or tribunal under the common law writ of certiorari
“may be had only when the trial court finds that the Board has acted in violation of constitutional


                                                  -4-
or statutory provisions or in excess of its own statutory authority; has followed unlawful procedure
or been guilty of arbitrary or capricious action; or has acted without material evidence to support
its decision.” Watts. v. Civil Service Bd., 606 S.W.2d 274, 277 (Tenn. 1980).

        Mr. Littles, in his Petition, has alleged that the Respondents acted illegally by violating his
due process rights under the Tennessee and United States Constitutions. Specifically, Mr. Littles
alleges due process violations as a result of: (1) the alleged failure of the investigating officer to
conduct a proper investigation into the incident which triggered the disciplinary process; (2)
insufficient evidence to support the conviction; (3) an alleged denial of an impartial disciplinary
tribunal; (4) alleged inadequate assistance from the inmate adviser; and (5) his alleged inability to
contest his placement in segregation.

        The Due Process Clause of the Fourteenth Amendment protects individuals in part by
guaranteeing fair procedure. See Zinermon v. Burch, 494 U.S. 113, 125 (1990). "In procedural due
process claims, the deprivation by state action of a constitutionally protected interest in 'life, liberty,
or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an
interest without due process of law." Id. Such a claim is not actionable until the State fails to
provide due process. See id. The question, therefore, is what process is due, if any, and whether the
process the State provides is constitutionally adequate. See id.

        In order to determine what, if any, process is due Mr. Littles, we must first determine
whether the punishment he received from the disciplinary board implicates a constitutionally
protected liberty interest. The Sixth Circuit Court of Appeals has held that "policy statements and
other promulgations by prison officials" can create liberty interests, the abrogation of which may
violate a prisoner's due process rights. Bills v. Henderson, 631 F.2d 1287, 1291 (6th Cir. Tenn.
1980). Similarly, the Sixth Circuit has noted that:

                Where statutes or prison policy statements have limited prison
                officials' discretion by imposing a specific prerequisite to the
                forfeiture of benefits or favorable living conditions enjoyed by a
                prisoner, an expectation or entitlement has been created which
                cannot be taken away without affording the prisoner certain due
                process rights.

Id. at 1292-93. The United States Supreme Court has added a requirement that only those restraints
to a prisoner's liberty which impose an "atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life" are actionable under the Due Process Clause. Sandin v.
Conner, 515 U.S. 472, 484 (1995) (emphasis added).

       Once a court determines that the restraints imposed upon the prisoner’s liberty are indeed
“atypical” and a “significant hardship,” the court must next determine what type of process is
constitutionally required. Under the United States Supreme Court’s decision in Wolff v.
McDonnell, 418 U.S. 539, 556 (1974), the Due Process Clause of the United States Constitution


                                                    -5-
requires that prisoners subject to disciplinary proceedings be given: (1) written notice of any charges
made against the prisoner at least twenty-four (24) hours before a hearing is held; (2) the opportunity
to present witnesses; (3) an impartial tribunal; and (4) a written statement from the tribunal
indicating what evidence the factfinder relied upon and the reasons for the disciplinary actions
taken. See also Nevills v. S. Cent. Corr. Disciplinary Bd., No. M2000-02324-COA-R3-CV, 2001
Tenn. App. LEXIS 714, at *13 (Tenn. Ct. App. Sept. 25, 2001).

        In this case, Mr. Littles alleges that his placement in administrative segregation for an
undetermined period of time constituted an atypical and significant hardship and, therefore,
implicated a liberty interest which requires the protections of due process. Mr. Littles explains that,
while he is being held in administrative segregation, he is classified a “maximum custody inmate.”
Under T.C.A. § 40-35-501(l)(2) (Supp. 2001), the Parole Board cannot certify an inmate for a parole
hearing while the inmate is in maximum custody, and that this prohibition continues until two years
after the inmate’s security status is reduced. We cannot agree that this inability to obtain
certification for a parole hearing constitutes a liberty interest which requires due process protections.

        Under Tennessee law, a prisoner acquires no due process right to early parole or to a hearing
on early parole. See, e.g., Wright v. Trammell, 810 F.2d 589, 591 (6th Cir. 1987); Frazier v.
Hesson, 40 F. Supp. 2d 957, 964 (W.D. Tenn. 1999); Kaylor v. Bradley, 912 S.W.2d 728, 735
(Tenn. Ct. App. 1995). This Court, in Kaylor, held that “[t]he Due Process Clauses of the state and
federal constitutions protect only genuine claims involving pre-existing entitlements. They do not
protect unilateral expectations or abstract needs or desires.” Id. Unless a prisoner has a vested right
in early release, he cannot state a due process claim. See id.

        Since Tennessee recognizes no constitutional right to early release, Mr. Littles cannot show
that he has suffered a deprivation of a liberty interest.2 Because no liberty interest is implicated in
this case, we do not need to address whether the Board provided Mr. Littles with the due process
requirements found in Wolff.

       Inasmuch as Mr. Littles cannot show that he has been deprived of a liberty interest under the
above analysis, the second issue, regarding proper parties to this action, is pretermitted.

        For the foregoing reasons, we affirm the order of the trial court dismissing the Petition for
failure to state a claim upon which relief may be granted. This case is remanded to the trial court
for any further proceedings consistent with this opinion. Costs of this appeal are assessed to the
Petitioner/Appellant, Larry Littles.

                                                          __________________________________________


         2
           We also n ote that, as the District Court explained in Frazier, “[t]his conclusion is not altered by the language
of the statute the "extensions in the release eligibility date provided for herein and in other sections o f this chapter shall
only be imp osed following a h earing conducted in accordance with d ue process of law." This merely enunciates a state
law procedural requirement, not the existence of a liberty interest.” 40 F. Supp. at 966.

                                                             -6-
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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