                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                           Assigned on Briefs February 17, 2006

                          HERMAN S. PHILLIPS
                                 v.
                 TENNESSEE DEPARTMENT OF CORRECTION

                 An Appeal from the Chancery Court for Lauderdale County
                      No. 12952 Martha B. Brasfield, Chancellor



                     No. W2005-02187-COA-R3-CV - Filed June 28, 2006


This is a petition for a common law writ of certiorari arising out of prison disciplinary proceedings.
The prison disciplinary board charged the petitioner with money laundering, a state offense. After
a hearing, he was found guilty of the charge and sentenced to punitive and administrative
segregation. He filed this petition for a common law writ of certiorari, challenging the board’s
disciplinary decision. The writ was granted, and the record of the disciplinary proceedings was sent
to the trial court for review. Subsequently, the petitioner filed a motion for summary judgment. The
respondent filed a notice that it did not intend to respond to the motion, because the record had
already been sent to the trial court for review. The trial court dismissed the petition on the merits
without first addressing the petitioner’s motion for summary judgment. The petitioner now appeals,
arguing that the trial court was required to decide his motion for summary judgment before
addressing the merits of his petition. We affirm, concluding that, under the circumstances, the trial
court was under no obligation to address the petitioner’s motion for summary judgment prior to
dismissing the action.

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

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

Herman S. Phillips, Whiteville, TN, appellant, Pro Se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Jennifer
Brenner, Assistant Attorney General, Nashville, TN, for the appellee, Tennessee Department of
Correction.
                                              OPINION

        Petitioner/Appellant Herman S. Phillips (“Petitioner”) is an inmate in the custody of the
Respondent/Appellee Tennessee Department of Correction (“TDOC”), who at all relevant times was
housed at the West Tennessee State Penitentiary (“WTSP”) in Henning, Tennessee. On January 27,
2004, Petitioner was issued a disciplinary infraction report for money laundering, a violation of
Tennessee state law. On January 29, 2004, he appeared before the WTSP disciplinary board and
entered a plea of not guilty. After a hearing, he was convicted of the money laundering charge. As
a result of the conviction, he was sentenced to punitive and administrative segregation and fined
$5.00.

         On March 26, 2004, Petitioner filed a Petition for Writ of Certiorari in the trial court below,
claiming that his disciplinary hearing was conducted in an illegal and arbitrary manner. As the basis
for his petition, he alleged that the board denied a request for documents in contravention of TDOC
Policy No. 502.01, that he was not allowed to cross-examine certain witnesses, and that three
witnesses were allowed to be in the hearing room together while they testified, “thereby ensuring that
each witness knew what the other witness said and would testify in accordance thereto.” He also
argued that his conviction was based on insufficient evidence. On May 16, 2004, TDOC filed an
answer to the petition.

         On September 30, 2004, the trial court entered an order granting the petition for certiorari and
ordered TDOC to file with the court the record of the disciplinary proceeding. Subsequently, TDOC
filed a certified copy of the disciplinary record in accordance with the writ.

        On October 29, 2004, Petitioner filed a motion for summary judgment. In his motion,
Petitioner alleged that there were no genuine issues of fact, and he was entitled to a judgment as a
matter of law, based on the certified record filed by the TDOC. Contemporaneously, Petitioner filed
a memorandum of law and his own affidavit. The memorandum of law filed by Petitioner merely
restated the allegations in his petition for certiorari. Petitioner’s affidavit was a sworn statement
attesting to the events alleged in the original petition. On November 18, 2004, TDOC filed a
response to Petitioner’s motion for summary judgment, notifying the trial court that, because the writ
had been issued and the certified record had been filed, Petitioner’s motion was moot and no further
response would be filed.

        On August 23, 2005, based on the certified copy of the disciplinary proceedings, the trial
court entered an order dismissing Petitioner’s petition on the merits. The order did not address
Petitioner’s motion for summary judgment. From this order, Petitioner now appeals, proceeding pro
se.

        The common law writ of certiorari is the proper vehicle through which a prisoner may seek
review of the decisions of a prison disciplinary board. See Rhoden v. TDOC, 984 S.W.2d 955, 956
(Tenn. Ct. App. 1998). Granting the writ is not a decision on the merits. Rather, the purpose of the
writ is to have the record of the administrative tribunal filed so that the reviewing court can


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determine whether the petitioner is entitled to relief. Livingston v. State of Tenn. Bd. of Paroles,
No. M1999-01138-COA-R3-CV, 2001 WL 747643, at *2 (Tenn. Ct. App. July 5, 2001). Once the
record is filed with the reviewing court, the reviewing court examines the proceedings of the lower
tribunal to determine whether that body exceeded its jurisdiction or acted illegally, fraudulently, or
arbitrarily. Waters v. TDOC, No. M2002-00917-COA-R3-CV, 2003 WL 21713421, at *4 (Tenn.
Ct. App. July 24, 2003). “[T]he common law writ of certiorari is not available to test the intrinsic
correctness of the law or facts of a particular case.” Powell v. Parole Eligibility Review Bd., 879
S.W.2d 871, 873 (Tenn. Ct. App. 1994); Yokley v. State, 632 S .W.2d 123, 126 (Tenn. Ct. App.
1981). “If the agency or board has reached its decision in a constitutional or lawful manner, then the
decision would not be subject to judicial review.” Powell, 879 S.W.2d at 873.

        In this appeal, Petitioner argues that the trial court erred in failing to address his motion for
summary judgment prior to dismissing his petition. As noted above, the trial court’s scope of review
is limited to a review of the proceedings in the administrative tribunal to determine whether the
administrative tribunal acted outside its jurisdiction or acted illegally, fraudulently, or capriciously.
“Ordinarily, once the complete record has been filed, the reviewing court may proceed to determine
whether the petitioner is entitled to relief without any further motions and, if the court chooses,
without a hearing. In doing so, the reviewing court may resolve any material factual disputes that
may exist in the record.” Jeffries v. TDOC, 108 S.W.3d 862, 868 (Tenn. Ct. App. 2002). After the
writ was granted and the trial court received the record for review, Petitioner filed a motion for
summary judgment. His motion for summary judgment restated the same arguments set out in his
petition. TDOC filed a notice that, because the writ had been issued and the certified record had
been filed, no further response would be forthcoming because the writ had been granted and the
record had been submitted to the trial court for review. Subsequently, the trial court dismissed his
petition, finding in favor of the TDOC on the merits. Petitioner cites no authority for the proposition
that the trial court was under an obligation to dispose of his motion for summary judgment before
dismissing the petition on the merits. The trial court reviewed the record before it and proceeded
to determine whether Petitioner was entitled to relief. Essentially, the trial court’s decision in favor
of TDOC on the merits was an implicit denial of Petitioner’s motion for summary judgment. Under
these circumstances, we must reject Petitioner’s argument.

        Petitioner’s second argument is related to the first, that the trial court should have granted
summary judgment in his favor because TDOC did not file a substantive response to his motion for
summary judgment as required under Tennessee Rule of Civil Procedure 56. Since the Petitioner’s
motion for summary judgment essentially restated the allegations in the original petition and the
certified record of the administrative proceedings had been filed, TDOC’s answer to the original
petition addressed the issues raised in the motion for summary judgment, and no further response
was required. Therefore, the trial court’s decision shall not be reversed on this basis.

        Petitioner does not argue on appeal that the trial court’s dismissal of his petition was
erroneous on the merits. Nevertheless, we note that, from our review of the record, it appears that
the board’s disciplinary decision was based on ample evidence, and that the board did not act
illegally, fraudulently, or capriciously in making its decision. To the extent that Petitioner seeks to


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attack the intrinsic correctness of the disciplinary board’s decision, neither the appellate court nor
the trial court is authorized to address whether the decision of the disciplinary board was correct.
See Turner v. Tenn. Bd. of Paroles, 993 S.W.2d 78, 81 (Tenn. Ct. App. 1999). Therefore, we affirm
the trial court’s decision to dismiss the petition on the merits.

      We affirm the decision of the trial court. Costs on appeal are to be taxed to Appellant
Herman S. Phillips, and his surety, for which execution may issue, if necessary.




                                                       ___________________________________
                                                       HOLLY M. KIRBY, JUDGE




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