                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                      ASSIGNED ON BRIEFS MARCH 23, 2010

        CHARLES PATTERSON v. TENNESSEE DEPARTMENT OF
                     CORRECTION, ET AL.

               Direct Appeal from the Chancery Court for Lake County
                       No. 5472    Tony Childress, Chancellor


                 No. W2009-01733-COA-R3-CV - Filed April 20, 2010


This appeal involves a petition for writ of certiorari filed by an inmate seeking review of his
disciplinary conviction for assaulting a fellow inmate. TDOC did not oppose the issuance
of the writ, and the certified record was filed with the trial court. Upon review of the record,
the trial court denied the petition, and we affirm.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.

Noel H. Riley, II, Dyersburg, Tennessee, for the appellant, Charles Patterson

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General,
Jennifer L. Brenner, Assistant Attorney General, Nashville, Tennessee, for the appellees,
Tennessee Department of Correction, et al
                                          OPINION

                          I.   F ACTS & P ROCEDURAL H ISTORY

        Charles Patterson (“Appellant”) is an inmate in the custody of the Tennessee
Department of Correction (“TDOC”) housed at the Northwest Correctional Complex
(“NWCX”) in Tiptonville, Tennessee. Appellant, along with others, was charged with the
disciplinary infraction of assaulting another inmate on October 9, 2007. Following a hearing
on October 29, 2007, the NWCX disciplinary board (the “Board”) found Appellant guilty,
and it recommended the following punishment: ten days punitive segregation, a $5.00 fine,
twelve months of package restriction, $646.91 restitution for medical expenses, involuntary
administrative segregation placement (“IAS”), and a five-year sentence extension through
the loss of sentence credits. Appellant appealed the Board’s decision to Warden Tommy
Mills, who affirmed the Board’s finding of guilt. According to Appellant, Commissioner
Little concurred with Warden Mill’s affirmation of the Board’s finding of guilt. Appellant
then filed a petition for writ of certiorari in the Lake County Chancery Court, claiming that
the Board’s decision was based on insufficient evidence, that the Board failed to follow its
policies and procedures resulting in a denial of due process, and that the Board’s
recommended punishment imposed atypical and significant hardships. TDOC did not oppose
Appellant’s petition and it filed a certified copy of Appellant’s disciplinary record, and the
trial court entered an Order granting Appellant’s petition for writ of certiorari. TDOC then
submitted a brief to the chancery court, and Appellant filed a memorandum of law and fact
in support of his petition. Apparently based upon the record, the chancery court dismissed
Appellant’s petition.

                                  II.    I SSUE P RESENTED

       Appellant presents the following issue for review:

1.     Whether or not the Board acted arbitrarily and capriciously in sentencing the
       Appellant to an additional five-year sentence.


                               III.     S TANDARD OF R EVIEW

        “The common-law writ of certiorari serves as the proper procedural vehicle through
which prisoners may seek review of decisions by prison disciplinary boards, parole eligibility
review boards, and other similar administrative tribunals.” Jackson v. Tenn. Dep't of Corr.,
No. W2005-02240-COA-R3-CV, 2006 WL 1547859, at *3 (Tenn. Ct. App. June 8, 2006)
(citing Rhoden v. State Dep't of Corr., 984 S.W.2d 955, 956 (Tenn. Ct. App.1988)). The

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issuance of a writ of common-law certiorari is not an adjudication of anything. Keen v. Tenn.
Dep't of Corr., No. M2007-00632-COA-R3-CV, 2008 WL 539059, at *2 (Tenn. Ct. App.
Feb. 25, 2008) (citing Gore v. Tenn. Dep't of Corr., 132 S.W.3d 369, 375 (Tenn. Ct.
App.2003)). Instead, it is “simply an order to the lower tribunal to file the complete record
of its proceedings so the trial court can determine whether the petitioner is entitled to relief.”
Id. (citing Hawkins v. Tenn. Dep't of Corr., 127 S.W.3d 749, 757 (Tenn. Ct. App. 2002); Hall
v. McLesky, 83 S.W.3d 752, 757 (Tenn. Ct. App. 2001)). “Review under a writ of certiorari
is limited to whether the inferior board or tribunal exceeded its jurisdiction or acted illegally,
arbitrarily, or fraudulently.” Jackson, 2006 WL 1547859, at *3 (citing McCallen v. City of
Memphis, 786 S.W.2d 633, 640 (Tenn. 1990)). “The reviewing court is not empowered ‘to
inquire into the intrinsic correctness of the board’s decision.’” Gordon v. Tenn. Bd. of Prob.
and Parole, No. M2006-01273-COA-R3-CV, 2007 WL 2200277, at *2 (Tenn. Ct. App. July
30, 2007) (quoting Willis v. Tenn. Dep't of Corr., 113 S.W.3d 706, 712 (Tenn. 2003)). Our
Supreme Court has held that a common-law writ of certiorari may be used to remedy: “(1)
fundamentally illegal rulings; (2) proceedings inconsistent with essential legal requirements;
(3) proceedings that effectively deny a party his or her day in court; (4) decisions beyond the
lower tribunal’s authority; and (5) plain and palpable abuses of discretion.” Gordon, 2007
WL 2200277, at *2 (citing Willis, 113 S.W.3d at 712). The reviewing court does not weigh
the evidence, but must uphold the lower tribunal’s decision if the lower tribunal “acted
within its jurisdiction, did not act illegally or arbitrarily or fraudulently, and if there is any
material evidence to support the [tribunal’s] findings.” Jackson, 2006 WL 1547859, at *3
(citing Watts v. Civil Serv. Bd. of Columbia, 606 S.W.2d 274, 276-77 (Tenn. 1980); Davison
v. Carr, 659 S.W.2d 361, 363 (Tenn. 1983)). “A board’s determination is arbitrary and void
if it is unsupported by any material evidence.” Gordon, 2007 WL 2200277, at *2 (citing
Watts, 606 S.W.2d at 277). Whether there existed material evidence to support the board’s
decision is a question of law which should be determined by the reviewing court based on
the evidence submitted. Id. (citing Watts, 606 S.W.2d at 277).

       This Court must review a trial court's conclusions of matters of law de novo with no
presumption of correctness. Gordon, 2007 WL 2200277, at *2 (citing Tenn. R. App. P.
13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)). Because our review of the
board's determination “is no broader or more comprehensive than that of the trial court with
respect to evidence presented before the [b]oard[,]” Id. (citing Watts, 606 S.W.2d at 277),
this Court “will not ‘inquire into the intrinsic correctness of the [b]oard’s decision,’ but will
uphold the decision if it was reached lawfully and in a constitutional manner.” Id. (quoting
Hopkins v. Tenn. Bd. of Paroles and Prob., 60 S.W.3d 79, 82 (Tenn. Ct. App. 2001)).




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                                       IV.    D ISCUSSION

                                        A. Due Process

          The Fourteenth Amendment’s Due Process Clause protects individuals by
guaranteeing fair procedure. Littles v. Campbell, 97 S.W.3d 568, 572 (Tenn. Ct. App. 2002)
(citing Zinermon v. Burch, 494 U.S. 113 (1990)). “‘In procedural due process claims, the
deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’
is not itself unconstitutional; what is unconstitutional is the deprivation of such an interest
without due process of law.’” Id. (quoting Zinermon, 494 U.S. at 125). A claim is not
actionable unless the State fails to provide due process; thus, we must first determine what
process is due, if any, and whether such process has been afforded. Id. (citation omitted).

        The United States Supreme Court has stated that only those restraints to a prisoner’s
liberty interest 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). “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.” Littles, 97 S.W.3d at 572.
Pursuant to Wolff v. McDonnell, 418 U.S. 539 (1974), the Due Process Clause requires that
inmates subject to disciplinary proceedings be afforded: “(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.” Id. (citing Nevills v. S. Cent. Corr. Disciplinary Bd., No. M2000-
02324-COA-R3-CV, 2001 WL 1117066, at *13 (Tenn. Ct. App. Sept. 25, 2001)).

        “[E]ven if a state prisoner is not entitled to due process protections in a disciplinary
proceeding, the inmate may nevertheless assert a claim under a common-law writ of
certiorari that the prison disciplinary board otherwise acted illegally or arbitrarily in failing
to follow TDOC’s Uniform Disciplinary Procedures. Irwin v. Tenn. Dep’t of Corr., 244
S.W.3d 832, 835 (Tenn. Ct. App. Aug. 13, 2007) (citing Willis, 113 S.W.3d at 713). “The
inmate may be entitled to relief under a common-law writ of certiorari if he demonstrates that
the disciplinary board failed to adhere to the Uniform Disciplinary procedures and that its
failure to do so resulted in substantial prejudice to the inmate.” Id. (citing Gore v. Tenn.
Dep’t of Corr., 132 S.W.3d 369, 378 (Tenn. Ct. App. 2003); Willis, 113 S.W.3d at 713-14).

      In this case, Appellant contends that “numerous things[,]” and “most obvious[ly] . .
. the five year revocation of his sentence credits” constitute an atypical or significant
hardship. Again, Appellant received the following punishment: ten days punitive

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segregation, a $5.00 fine, twelve months of package restriction, $646.91 restitution for
medical expenses, involuntary administrative segregation placement (“IAS”), and a five-year
sentence extension through the loss of sentence credits. “[T]he loss of previously earned
sentence reduction credits has been found to implicate an interest sufficient to invoke due
process.” Seals v. Bowlen, No. M1999-00997-COA-R3-CV, 2001 WL 840271, at *6 (Tenn.
Ct. App. July 26, 2001) (citing Greene v. Tenn. Dep’t of Corr., No. 01A01-9608-CH-00370,
1998 WL 382204, at *3 (Tenn. Ct. App. July 10, 1998) (footnote omitted)). However,
Appellant’s other forms of punishment do not constitute an “atypical” and “significant
hardship.” Anglin v. Turner, No. E2006-01764-COA-R3-CV, 2007 WL 914708, at *3
(Tenn. Ct. App. Mar. 8, 2007) (six month package restriction not atypical); Seals v. Bowlen,
No. M1999-00997-COA-R3-CV, 2001 WL 840271, at *6 (Tenn. Ct. App. July 26, 2001)
($5.00 fine 1 and ten day punitive segregation not atypical); Littles, 97 S.W.3d at 573
(administrative segregation for an undetermined period of time not atypical). Because his
liberty interests have been implicated in this case, we will address not only whether TDOC
Policy was followed, but also whether Appellant was afforded the due process requirements
set forth in Wolff.


                                        B. Notice of Charges

       On appeal, Appellant alleges that he was never properly notified of the charges against
him. “[T]o give the charged party a chance to marshal the facts in his defense and to clarify
what the charges are, in fact[,]” Wolff, 418 U.S. at 564 (citing In re Gault, 387 U.S. 1, 33-
34, and n.54 (1967)), “advance written notice of the claimed violation” must be given to
inmates charged with disciplinary violations. Id. at 563. Moreover, TDOC Policy 502.01
(VI)(E)(3), regarding the initiation of a formal disciplinary action, provides in part:

        An employee (not necessarily the reporting employee) shall read the report to
        the inmate, advise him/her of their rights, and request the inmate to sign
        acknowledging receipt of the report. If the inmate refuses to sign, the result
        shall be noted on the form. One copy shall be given to the inmate at that time
        and a copy should be provided to the inmate advisor or appropriate staff
        member. The original shall be forwarded to the disciplinary hearing officer for
        processing.

Appellant first argues that he never received the required report. He claims:

        1
         Inmates do have a property interest in the funds in their trust accounts; however “the ‘de minimus
nature’ of a $5.00 fine makes ‘it immune from procedural due process requirements.’” Irwin v. Tenn. Dep’t
of Corr., 244 S.W.3d 832, 835 n.2 (Tenn. Ct. App. Aug. 13, 2007) (quoting Willis, 113 S.W.3d at 711).

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       [Appellant] submitted to the Board the form at the hearing that was supposedly
       provided to him. Said form was blank and there was no indication who the
       prison employee was, whether or not that person was the reporting employee,
       or otherwise, and said form failed to substantiate that he was advised of the
       charges against him or advised of his rights. At the hearing, [Appellant]
       denied that he was ever given such a report, and furthermore asked the Board
       to inquire as to the signature of the person in regard to the form that they had
       on file and whether or not that individual actually read the report to the inmate,
       advised him or his rights or even asked him to sign the form.

        The record before us contains a “Disciplinary Report” stating that “[b]ased on the
results of an internal investigation . . . [Appellant] [is] charged with assault on [another
inmate] . . . on October 9, 2007 in which [the victim] received multiple stab wounds
requiring treatment at institutional infirmary and outside hospital.” The report further
indicates that at 5:33 on October 16, 2007, C/O Boyd delivered a copy of the report to
Appellant and advised him of his rights, but Appellant refused to sign an acknowledgment
of such. We find that Appellant was properly notified of the charges against him.

                                 C. Statement of Evidence

        Appellant also claims that he was never given “a written statement of the fact finders
as to the evidence relied on.” The requirement that factfinders prepare a written statement
“‘as to the evidence relied on and reasons for the disciplinary action’” “protect[s] the inmate
against collateral consequences based on a misunderstanding of the nature of the original
proceeding[,] . . . [and it] helps to insure that administrators, faced with possible scrutiny by
state officials and the public, and perhaps even the courts, where fundamental constitutional
rights may have been abridged, will act fairly.” Wolff, 418 U.S. at 564-65 (quoting
Morrissey v. Brewer, 408 U.S. 471, 489 (U.S. 1972)).

       The “Disciplinary Continuation” form presents a condensed transcript of the
disciplinary proceedings. This “written statement” shows that at Appellant’s hearing, officer
Foster testified that both pod officer Carr and the victim identified Appellant as one of four
inmates who committed the assault. Because the form clearly recites the evidence relied
upon and the Board’s reasoning for its decision, we find this issue without merit.

                                D. Ability to Call Witnesses

      Next, Appellant claims that he was denied the right to call both the assault victim and
pod officer Carr as witnesses at the hearing. Appellant cites article 1, section 9 of the
Tennessee Constitution which provides that “in all criminal prosecutions, the accused ha[s]

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the right to . . . meet the witnesses face to face.” Tenn. Const. art. 1, § 9. However,
“[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply
of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418
U.S. 539, 556 (1974) (citing Morrissey, 408 U.S. at 488).

       Pursuant to TDOC Policy 502.01(VI)(L)(4)(c), an accused inmate has the right to
cross-examine witnesses and the right to “present the testimony of relevant witness(es),
unless allowing the witness to appear would pose a threat to institutional safety or order.”
However, the inmate must request the presence of witnesses:
       (1) An inmate who wishes to have witness(es) (inmate or staff) present to
       testify on his/her behalf at the hearing shall complete an Inmate Witness
       Request, CR-3511, and submit it to the chairperson/hearing officer at least
       twenty-four (24) hours prior to the hearing. The chairperson/hearing officer
       shall indicate on the form whether the inmate’s request has been approved or
       denied and, if a requested witness is denied, the specific reason(s) for not
       permitting the attendance of the witness requested by an inmate.
       (2) If an inmate fails to request a witness on CR-3511 prior to the hearing, the
       chairperson/hearing officer may still allow the witness to testify. Factors to be
       considered in making such a decision include the witness, the nature of the
       witness’ testimony and how difficult it would be to obtain the witness’
       testimony.
       (3) An inmate may submit a written witness statement when the personal
       appearance of a witness has been denied.
       (4) When a witness cannot be physically present at a hearing, the
       chairperson/hearing officer may allow his/her testimony to be given by
telephone, provided a speaker telephone is used so that all persons participating in the
hearing can hear the testimony.

TDOC Policy 502.01(VI)(L)(4)(d).

       Both the “Disciplinary Hearing Report Summary” and the “Disciplinary Continuation”
form recite that Appellant failed to complete a witness request form. Appellant does not
suggest that he was unable to do so. Instead, he simply argues that he “did not execute a
form as required waiving []his right to call witnesses,” without citing authority for this
“requirement.”      TDOC Policy 502.02(VI)(L)(4)(a)(3) provides that “[t]he board
chairperson/hearing officer shall make the following inquiries (the answer(s) to which shall
be stated in the findings of the board): . . . [w]hether the inmate waived the right to call a
witness(es) in his/her behalf[.]” The policy does not suggest that an inmate must execute a
written waiver in order to waive his or her right to call witnesses. By acknowledging on both

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of the aforementioned forms that Appellant failed to request the presence of any witnesses,
the Board indicated that Appellant had “waived the right to call a witness(es)[,]” in
compliance with TDOC Policy.

        As we stated above, TDOC Policy 502.01(VI)(L)(4)(d) provides that inmates who
“wish[ ] to have witness(es) (inmate or staff) present to testify on his/her behalf at the hearing
shall complete an Inmate Witness Request, CR-3511[.]” (emphasis added). The record
demonstrates that Appellant failed to submit a form requesting the presence of any witness
prior to the hearing. At the hearing, Appellant’s inmate advisor asked if pod officer Carr
could be brought into the hearing, but his request was denied, and there is no indication that
he requested to call the assault victim. When an inmate fails to request a witness’ presence
prior to the hearing, “the chairperson/hearing officer may still allow the witness to testify.”
TDOC Policy 502.01(VI)(E)(3)(d)(2). It is within the chairperson’s discretion to allow
testimony when a CR-3511 form has not been completed. Furthermore, “when the personal
appearance has been denied[,]” an inmate may submit a written witness statement, which
Appellant failed to do. TDOC Policy 502.01(VI)(E)(3)(c)(6)(3). In sum, we find that
TDOC Policy was complied with and Appellant’s due process rights were not violated.

                                 E. Sufficiency of Evidence

       As we pointed out above, at the disciplinary hearing, officer Foster testified that both
pod officer Carr and the victim had identified Appellant as one of four inmates who
committed the assault. Appellant argues that officer Foster’s testimony was “gross hearsay,”
and that the only “actual evidence was the statement by the inmate [Garion] Lewis who
admitted that he had had an argument with the victim, and that he was the only one in
question that assaulted the victim[.]”

        “[T]he Uniform Disciplinary Procedures differ in some significant ways from the
procedures that bind our criminal courts, proceedings which may result in the initial loss of
freedom. For example, guilt of a disciplinary infraction does not have to be proven beyond
a reasonable doubt, but only by a preponderance of the evidence.” Keen, 2008 WL 539059,
at *5 (citation omitted). Furthermore, a disciplinary board may “consider any evidence it
finds reliable, whether or not such evidence would be admissible in a court of law.” Id.
(citation omitted). This Court may not reweigh the evidence, “but must affirm the Board's
decision if there is any material evidence to support it.” Pirtle v. Tenn. Dep't of Corr., No.
W2006-01220-COA-R3-CV, 2007 WL 241027, at *5, (Tenn. Ct. App. Jan. 30, 2007) (citing
Watts, 606 S.W.2d at 276-77).

      In his affidavit, which was introduced into evidence at the hearing, inmate Lewis
assumed full responsibility for the assault, declaring that Appellant “[i]s not the one to blame

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for what I have done.” However, this was not the only evidence presented, as Appellant
suggests. Again, officer Foster testified that both the victim and another officer implicated
Appellant in the assault, and the Board properly considered this testimony. We find
sufficient evidence to support the Board’s decision.

                                    V.   C ONCLUSION

        For the aforementioned reasons, we affirm the decision of the chancery court. Costs
of this appeal are taxed to Appellant, Charles Patterson, for which execution may issue if
necessary.




                                                   _________________________________
                                                   ALAN E. HIGHERS, P.J., W.S.




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