                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                               Assigned On Brief May 6, 2002

 VICTOR R. WINGO v. TENNESSEE DEPARTMENT OF CORRECTION

               Direct Appeal from the Chancery Court for Lauderdale County
                       No. 11,925   Martha B. Brasfield, Chancellor



                      No. W2002-00312-COA-R3-CV - Filed June 7, 2002


Petitioner, an inmate in custody of the Tennessee Department of Correction, filed a petition for writ
of certiorari seeking judicial review of a disciplinary hearing wherein the inmate was found guilty
of assault and strong arm activity and received a deduction of one-year in good time and was
upgraded to maximum security. The trial court granted respondent’s motion to dismiss for failure
to state a claim. We affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY K. LILLARD , J., joined.

Victor Wingo, Pro Se.

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

                                            OPINION

        The petitioner, Victor Wingo, filed a “Petition for Certiorari and Supersedeas” wherein it
is alleged that he was charged with two separate offenses while being housed at the West Tennessee
State Prison. The petition further cites that he was charged with assault and strong-arm activity and
received a deduction of one-year in good time and was upgraded to maximum security. The
Respondent filed a motion to dismiss pursuant to Rule 12.02 Tenn. R. Civ. P. for failure to state a
claim upon which relief may be granted. The trial court granted the motion to dismiss and this
appeal resulted.

       Our scope of review is under the common law writ of certiorari, which in this case covers
an inquiry only into whether the respondent has exceeded its jurisdiction or is acting illegally,
fraudulently, or arbitrarily. Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn.
Ct. App. 1994); see also Buford v. Tennessee Dep’t of Corr., M1998-00157-COA-R3-CV, 1999
Tenn. App. LEXIS 755, at *3 (Tenn. Ct. App. Nov. 10, 1999)(no perm. app. filed). The purpose
of a rule 12.02 motion to dismiss is to test the legal sufficiency of the complaint or petition. The
trial court’s ruling is determined by an examination of the petition alone. The reviewing court
should take all the well pleaded material factual allegations as true, and construe the petition
liberally in the petitioner’s favor. Dobbs v. Guenther, 846 S.W.2d 270 (Tenn. Ct. App. 1992). If
the court finds that such facts do not constitute a cause of action, it should dismiss the petition.
Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975). The grant or denial of the writ is within the
sound discretion of the trial court. Boyce v. Williams, 398 S.W.2d 272 (Tenn. 1965).

       The petition filed in this matter states in pertinent part as follows:

                Petitioner is much aggrieved by determinations made in said case by
       Commissioner Donal Campbell on the 22nd day of November, 2000. Petitioner was
       charged with two separate offenses while being housed at the West Tennessee State
       Prison in Henning. Petitioner was charged with Assault and Strong Arm Activity
       and received a deduction of a year in good time and was upgraded to maximum
       security as well. Said determination of the Commissioner is erroneous because the
       law and the facts are not as found by said Commissioner. Petitioner has been
       deprived of due process of law by the nature of the alleged hearing and the procedure
       therein and deprived of a valuable liberty right without due process in violation of
       the Constitution of the United States of America and the Constitution of the United
       States. The Tennessee Department of Correction acted unreasonably and arbitrarily
       in this matter, and its decision was not based upon competent and credible evidence,
       but upon hearsay testimony and irrelevant and immaterial evidence.

               Petitioner would further show that the actions of the Tennessee Department
       of Correction regarding punishment for the alleged violations by revocation of
       Petitioner’s good time credits and placement into maximum security is unduly harsh
       and manifestly unfair and unreasonable under the facts and circumstances involved
       and that the degree of punishment is not consistent with other actions of the
       Tennessee Department of Correction for offenses by other parties. Moreover, the
       hearings provided by the Tennessee Department of Correction did not comport with
       the due process requirements of Wolff v. McDonnell, 418 U.S. 539 (1974) and its
       progeny.

               Petitioner further charges that he has been damaged and will be irreparably
       damaged and deprived of a valuable liberty right without the benefit of a fair,
       complete, and impartial hearing by the action of Respondent unless this Court
       restrains Respondent from proceeding further with the penalty imposed upon
       Petitioner. Petitioner avers that the general counsel for the Tennessee Department
       of Correction has been given notice.




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         The scope of review under a common law writ of certiorari does not involve an inquiry into
the intrinsic correctness of the decision of the tribunal below, but only as to whether the tribunal has
exceeded its jurisdiction, or acted illegally, fraudulently or arbitrarily. See Powell v. Parole
Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct App. 1994); Yokley v. State, 632 S.W.2d 123
(Tenn. Ct. App. 1981)(no perm. app. filed). Mere conclusary statements are not sufficient to
survive a motion to dismiss for failure to state a claim, but the petition must allege facts showing
that the petitioner is entitled to relief. Powell, 879 S.W.2d at 873.

        The petition before us alleges that “determination of the commissioner is erroneous because
the law and the facts are not as found by the commissioner. The Tennessee Department of
Correction acted unreasonably and arbitrarily in this matter, and its decision was not based upon
competent and credible evidence, but upon hearsay testimony and irrelevant and immaterial
evidence.” Taking these alleged facts as true, Petitioner merely attacks the intrinsic correctness of
the disciplinary board’s judgment. Such a claim cannot be considered under the common law writ
of certiorari. See Harris v. Hensley, M1999-00654-COA-R3-CV, 2000 Tenn. App. LEXIS 318, at
*11 (Tenn. Ct. App. May 17, 2000). Conclusary allegations of illegality or arbitrariness, or of bias
or other due process violations, are not sufficient to avoid dismissal of a petition for writ of
certiorari. Davis v. Campbell, 02A01-9611-CV-00268, 1997 Tenn. App. LEXIS 910, at *10 (Tenn.
Ct. App. Dec. 18, 1997)(no perm. app. filed).

       The petition further alleges that “petitioner has been deprived of due process of law by the
nature of the alleged hearing and the procedure therein and deprived of a valuable liberty right
without due process in violation of the Constitution of the United States of America and the
Constitution of the United States.” It is further alleged that the actions of the Department “regarding
punishment for the alleged violations by revocation of Petitioner’s good time credits and placement
into maximum security is unduly harsh and manifestly unfair and unreasonable . . . . Moreover, the
hearings provided by the Tennessee Department of Correction did not comport with the due process
requirements of Wolff v. McDonnell, 418 U.S. 539 (1974) and its progeny.”

         The Due Process Clause of the United States Constitution requires that prisoner’s subject
to disciplinary proceedings be given: (1) Written notice of any charges made against the prisoner
at least twenty-four (24) hours before the 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
fact-finder relied upon and the reasons for the disciplinary actions taken. See id. at 556. In Wolff,
the court recognized that the unique requirements of prison life necessarily involved the loss by
prisoners of many rights afforded to citizens not incarcerated. The court established the minimal
constitutional requirements which must be met in prison disciplinary proceedings as set forth above.
Id. at 564-66. The Supreme Court later limited the application of Wolff, holding that a prisoner’s
liberty or property interest is not sufficient to trigger due process in a number of situations where
disciplinary sanctions are imposed. An inmate is only entitled to the limited due process rights
provided in Wolff, when the sanctions imposed “atypical and significant hardship on the inmate in
relation to the ordinary incident[s] of prison life.” Sandin v. Conner, 515 U.S. 472, 483-85 (1995).
The court held that persons incarcerated pursuant to a valid conviction are not entitled to


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constitutional due process in prison disciplinary procedures that result in brief periods of
disciplinary segregation, and determine that 30 days was a brief period. A prisoner has a property
interest in accumulated or already earned good and honor time credits. See Greene v. Tennessee
Dep’t of Corr., 01A01-9608-CH-00370, 1998 Tenn. App. LEXIS 461, at *3 (Tenn. Ct. App. July
10, 1998)(no perm. app. filed). However, the petition fails to allege any facts to support the
allegations that petitioner was deprived of the process due him under the decision of Wolff v.
McDonnell, 418 U.S. 539 (1974).

        Having examined Mr. Wingo’s petition, we do not find any facts to indicate that the
Department of Correction or the Disciplinary Board has exceeded its jurisdiction, or has acted
illegally, fraudulently, or arbitrarily. Therefore, we affirm the trial court’s dismissal of the petition
for failure to state a claim upon which relief can be granted. Costs of this appeal are taxed to the
appellant, Victor Wingo, for which execution may issue if necessary.



                                                         ___________________________________
                                                         DAVID R. FARMER, JUDGE




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