                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                             Assigned on Briefs November 15, 2010

  TYRONE W. VANLIER v. TURNEY CENTER DISCIPLINARY BOARD
                           ET AL.

                     Appeal from the Chancery Court for Hickman County
                             No. 09-295C   Jeffrey Bivins, Judge


                    No. M2010-01146-COA-R3-CV - Filed January 7, 2011


An inmate at the Turney Center Industrial Complex filed this petition for writ of certiorari
to challenge the ruling of the Turney Center Disciplinary Board that he failed to report for
work, imposed a fine, and placed him on probation. After the Board’s ruling was affirmed
by the Warden and Commissioner of Correction, this petition was filed. The chancellor
dismissed the writ. We affirm the ruling of the chancellor.

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

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, JJ., joined.

Tyrone Wyatt Vanlier, Only, Tennessee, Pro Se.

                                    MEMORANDUM OPINION 1

                                          P ROCEEDINGS ON A PPEAL

      This appeal arises from a disciplinary proceeding at the Turney Center Industrial
Complex. The defendants in this action include the Turney Center Disciplinary Board, its
Chairman, and individual Board members, the Warden and the Commissioner of Correction.

       1
           Tenn. Ct. App. R. 10 states:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
By letter from David S. Sadlow, Assistant Attorney General, this court was advised that the
Tennessee Attorney General’s Office does not represent any of the named defendants
because none of “the named Respondents sought representation from this office” and that
“no responsive brief will be filed by the Attorney General’s Office pertaining to this appeal.”

         Realizing that the Attorney General’s Office does not represent any of the defendants
and that none of the defendants filed a reply brief, this court afforded the individual
defendants additional time in which to file their briefs, should one or more of them choose
to do so. None of the defendants filed a brief and no one has made an appearance on their
behalf. Although failing to file a reply brief is most irregular and not favored by this court,
it is our duty to proceed with this appeal based on the record and the appellant’s brief before
us.

                             F ACTS AND P ROCEDURAL H ISTORY

        The facts and history relevant to the disciplinary proceedings at the Turney Center are
set forth in Petitioner’s brief under a heading he identified as the “Statement of the Case.”
It reads:

       On the morning of 9/9/09 petitioner was waiting in his cell for the work call.
       Officer Hensley never made that call out for inmates to report to work.
       Petitioner was written a disciplinary report for failure to report to work.
       Petitioner appealed to the warden and commissioner, each appeal was
       affirmed. Petitioner filed a writ of certiorari. The writ was denied January 26 th
       2010, for failure to file all the documents necessary to vest the court
       jurisdiction to hear the matter, according to there [sic] order. Petitioner filed
       a motion to amend, which was denied May 7 th 2010. Petitioner filed a notice
       to appeal.

       Petitioner also provided the following “Statement of the Facts”:

       On 9/9/09 petitioner was written a disciplinary report for failure to report to
       work. On 9/14/09 petitioner attended a disciplinary hearing and was found
       guilty of the infraction and given a 5-dollar fine and placed on probation for
       60 days. Petitioner appealed to the warden and commissioner, the appeal was
       affirmed by both.

     This action followed. On December 28, 2009, Petitioner filed this petition for
common law writ of certiorari to challenge the action of the Disciplinary Board, the Warden,



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and the Commissioner. On January 26, 2010, prior to any defendants filing an answer or
responsive pleading, the Chancery Court, acting sua sponte, issued the following order:

                                           ORDER

              The Petitioner filed this action seeking a common law writ of certiorari
       to review a disciplinary action at Turney Center. The Petitioner filed an
       affidavit of indigency requesting that the Court allow him to file this matter
       upon a pauper’s oath. Pursuant to Tenn. Code Ann. § 41-21-805(a)(1) and (2),
       the Petitioner also was required to file a separate affidavit listing all lawsuits
       previously filed by the Petitioner and providing specific information regarding
       each such lawsuit.

               A review of the filings by the Petitioner demonstrates that the Petitioner
       has failed to file this separate affidavit. Accordingly, the Petitioner has failed
       to file all of the documents necessary to vest this Court with jurisdiction to
       hear this matter. Therefore, the Petition is hereby Dismissed.

       Thereafter, on February 22, 2010, Petitioner filed a motion to alter or amend the
January 26 order. In support of the motion, Petitioner stated that his failure to comply was
inadvertent and he attached an affidavit with the motion in an effort to satisfy Tenn. Code
Ann. § 41-21-805(a)(1) and (2). After reviewing Petitioner’s motion, the Chancery Court
issued the following order:

                                           ORDER

               This matter is before the Court upon the Motion to Alter or Amend a
       Judgment filed by the Petitioner in this matter on February 22, 2010. On
       January 26, 2010, this Court dismissed the petitioner’s action seeking a
       common law writ of certiorari to review a disciplinary action at Turney
       Center. This Court dismissed the action based upon the Petitioner’s failure to
       file a separate affidavit listing all lawsuits previously filed by the Petitioner
       and providing specific information regarding specific information regarding
       each such lawsuit as required by Tenn. Code Ann. § 41-21-805(a)(1) and (2).
       The Petitioner now requests that the Court set aside that dismissal based upon
       the Petitioner now filing the required affidavit.

             The Court notes that the Commissioner’s decision was issued on
       November 2, 2009. The Petitioner now has filed the required affidavit on
       February 22, 2010. The filing of this required affidavit is well outside the sixty

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       (60) day limitation period for filing petitions requiring a common law writ of
       certiorari. Because the Petitioner failed to file all of the required documents
       with the Court within the sixth (60) day period following the Commissioner’s
       decision, this Court has no subject matter jurisdiction over this action. See
       Richard v. Tennessee Dept. of Correction, 2010 WL 730144 (Tenn. Ct. App.,
       April 29, 2010). Accordingly, the Petitioner’s Motion to Alter or Amend is
       Denied.

       This appeal followed.

                                           A NALYSIS

        Petitioner’s issues on appeal are that the Chancery Court erred in dismissing the writ
of certiorari prematurely and that the Chancery Court’s grounds for dismissal are not factual.
We find no merit to either contention.

       The record before us is small, the facts are undisputed and the dispositive issue is
straightforward. Having reviewed the record we find the grounds for dismissal of the petition
are indeed factual, contrary to Petitioner’s assertion that they are not. The record reveals that
Petitioner did not provide the affidavit and information required by Tenn. Code Ann. § 41-
21-805(a)(1) and (2) when the petition was filed. Thus, the Chancellor did not err in
dismissing the petition.

        After the petition was dismissed, Petitioner filed a Rule 59.04 motion to alter or
amend the judgment. The trial court denied the motion. Whether to grant or deny a Rule 59
motion to alter or amend is within the absolute discretion of the trial court and we do not find
that the trial court abused its discretion by denying the motion to alter or amend. Moreover,
when Petitioner subsequently attempted to cure the deficiency, the sixty-day jurisdictional
window had expired as the trial court correctly noted.

       Accordingly, we find the Chancellor did not err in dismissing the writ of certiorari and
we affirm the decision to dismiss the writ and to deny the motion to alter or amend for the
reasons stated by the Chancellor in his orders.




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                                     IN C ONCLUSION

       The judgment of the trial court is affirmed and this matter is remanded with costs of
appeal assessed against the appellant, Tyrone W. Vanlier.




                                                     ______________________________
                                                     FRANK G. CLEMENT, JR., JUDGE




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