                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                 Assigned on Briefs March 13, 2001

             TONY WILLIS, ET AL. v. TENNESSEE DEPARTMENT OF
                           CORRECTION, ET AL.

                        Appeal from the Chancery Court for Davidson County
                          No. 99-3332-III  Ellen Hobbs Lyle, Chancellor



                          No. M2000-01397-COA-R3-CV - Filed June 5, 2002



WILLIAM C. KOCH, JR., J., dissenting.

        The court has constructed its decision in this case using Sandin v. Conner, 515 U.S. 472, 115
S. Ct. 2293 (1995) as its foundation. I do not believe that Sandin v. Conner can carry the weight the
court has placed on it. Accordingly, I dissent, not because the prisoner is entitled to judicial relief,
but simply because his petition states a claim upon which the sort of relief available through a
common-law writ of certiorari could be granted.

                                                         I.

        In mid-1999, Tony Willis and Edward Tharpe were cellmates at the Turney Center in
Hickman County. They were charged with attempted escape, a Class A disciplinary offense,1 after
a pair of pliers was discovered taped to the bottom of a fan in their cell. The pliers had apparently
been stolen from a maintenance worker. At separate disciplinary hearings conducted in August
1999, both Messrs. Willis and Tharpe were found guilty of attempted escape based on the pliers and
other information provided by a confidential informant. The Class A Disciplinary Board punished
them with punitive segregation, involuntary administrative segregation, and a five dollar fine. The
warden and the Commissioner of Correction later upheld the disciplinary board’s decisions.

         On November 18, 1999, Messrs. Willis and Tharpe filed a pro se petition for common-law
writ of certiorari in the Chancery Court for Davidson County seeking judicial review and reversal
of their convictions for attempted escape. Their petition alleged, at least as I understand it, that they
were denied a fair hearing in violation of their due process rights and that the disciplinary board had
acted arbitrarily and illegally by failing to follow the Department of Correction’s Uniform


       1
           Uniform Disciplinary Procedures, TDO C Policy No . 502.05(VI)(A )(5) (Dec. 30, 1996 ) (“TDO C Policy”).
Disciplinary Procedures. Specifically, Messrs. Willis and Tharpe asserted (1) that they were not
provided adequate notice of the charges against them and that they “were never told when, where,
what, why or how they were attempting to escape,” (2) that they were prevented from discovering
and presenting relevant, “exculpatory” evidence and witnesses, (3) that they were convicted using
evidence from a confidential informant that was mishandled by the disciplinary board, and (4) that
their punishment was excessive.

        Approximately seven weeks after Messrs. Willis and Tharpe filed their petition, the Office
of the Attorney General, on behalf of the Department, filed its customary motion for an extension
of time to respond. Even though the trial court granted an extension to February 22, 2000, the
Attorney General was unable to file his customary conclusory motion to dismiss2 until February 24,
2000. Because the motion was not accompanied by a memorandum of law, the Attorney General
filed an identical motion to dismiss and a memorandum of law on February 25, 2000.

        The Attorney General’s memorandum of law in support of the motion to dismiss is, for some
reason, part of the appellate record.3 From it, we learn that the Attorney General’s motion was
predicated on two grounds. First, the Attorney General asserted that the trial court lacked subject
matter jurisdiction over the petition because Messrs. Willis and Tharpe could not use a statutory writ
of certiorari to seek judicial review of the disciplinary board’s decision.4 Second, the Attorney
General insisted that the trial court should dismiss the petition “because the disciplinary board
neither acted unlawfully nor exceeded its jurisdiction.” While one would have thought that the latter
assertion would require at least a cursory review of the record of the disciplinary proceedings, the


         2
           The motion simply asserted that the petition shou ld be dismissed “[p]ursuant to Tenn. R. Civ. P. 12.02(1) and
(6).” This motion, like most of the motions filed by the Civil Rights and Claims Division in cases o f this sort, fails to
com ply with the rudimen tary requirements of motion practice under the Tennessee Rules of Civil Procedure. In terms
that even first-yea r law students can und erstand, Tenn . R. Civ . P. 7.02(1) req uires th at motion s must “state with
particularity the grounds therefor.” For the purposes of a Tenn. R. Civ. P. 12.02(6) motion, this means that the moving
party must state in its motion why the plaintiff has failed to state a claim for which relief can be granted. We have
repeatedly reminded the Attorney General that includin g the ground s for a T enn . R. Civ . P. 12.02(6) m otion in a sep arate
memorandum of law does not comply with Tenn. R. Civ. P . 7.02 (1). See, e.g., Hickman v. Tennessee Bd. of Paroles,
No. M2000-02846-COA-R3-CV, 2001 WL 1222259, at *1, n.2 (T enn . Ct. App. Oct. 16, 2001) (Tenn. R. App. P. 11
application pending ); Pen dleton v. M ills, _ __ S.W .3d ___, ___, 2000 W L 108 950 3, at *2 , n.7 (Tenn. Ct. App . 2001);
Robinson v. Clement, 65 S.W.3d 632, 635 n.2 (Tenn. Ct. App . 2001).

         3
           It is not altogether clear why the Clerk and Master included this mem orandum of law in the appellate record
in light of Tenn. R. A pp. P. 24(a)’s clear admon ition that trial briefs and counsel’s memoranda of law are not part of
the record on appeal. Atkins v. Kirkpatrick, 823 S.W.2d 547, 549 (Tenn. Ct. App. 1 991 ); Aclin v. Speight, 611 S.W.2d
54, 5 6 (Tenn . Ct. App. 1 981 ).

         4
           We have repeatedly held that this standard subject-matter jurisdiction argument is without merit because Tenn.
Code Ann. §§ 27-8-104 (a), 27-9-102 (2000) clearly give the Chancery Court for Davidson County subject matter
jurisdiction over petitions of this sort. The argument is even more tenuous in this case beca use there is absolutely no
basis for construing the petition as one seeking a statutor y w rit of certiorari. The petition’s reference to Tenn. Code
Ann. § 27 -9-1 01, et seq. does n ot transform the petition in to a petition for statutory writ of certiorari because the
procedures in Te nn. C ode An n. §§ 27-9 -101, -114 apply equa lly to co mm on-law and statutory w rits of certiorari.
Fentress County Beer Bd. v. Cravens, 209 Tenn . 679, 685-86 , 356 S.W .2d 260, 263 (1962).

                                                             -2-
Attorney General did not file the record of the disciplinary hearing even though it was readily
available. The Attorney General must have decided that the record would be superfluous in light
of his argument that the petition failed to state a claim upon which relief could be granted because
the “[p]etitioners in this case were not entitled to due process since the imposed sanctions of punitive
segregation, involuntary administrative segregation, and a fine of $5.00 were not atypical in relation
to the ordinary incidents of prison life.”5

        In its May 5, 2000 memorandum and order, the trial court, citing Sandin v. Conner,
determined that Messrs. Willis and Tharpe had failed to state a claim meriting the sort of relief
available through a common-law writ of certiorari because the punishments they received “are not
atypical in relation to the ordinary incidents of prison life.” The court also concluded based on the
“undisputed facts of record”6 that “the process provided to the petitioners to contest and defend
against disciplinary sanctions was commensurate with the sanctions imposed on them and, therefore,
there was no violation or deprivation of due process.” Mr. Tharpe has appealed.7

                                                              II.

        The court has determined that Mr. Tharpe’s petition failed to state a claim upon which relief
can be granted solely because the punishment he received was not harsh enough to amount to the
imposition of “atypical and significant hardship . . . in relation to the ordinary incidents of prison
life.”8 The court’s reliance on Sandin v. Conner is flawed in two fundamental ways. First, Sandin
v. Conner does not apply to certiorari proceedings in state court. Second, relief under a common-law
writ of certiorari addresses not just violations of constitutional rights, but also arbitrary and
capricious decisions.

                                                              A.

       The United States Supreme Court did not intend to establish some sort of universal rule
governing all federal and state judicial proceedings involving the discipline of prisoners when it
decided Sandin v. Conner. Rather, the Court was simply articulating a test for determining whether
prisoners seeking relief under 42 U.S.C. § 1983 (1994) had alleged a violation of a liberty interest


          5
              The legal basis for this assertion is Sandin v. Co nner and this court’s expansive interpretation of Sandin v.
Conner.

          6
            Of course there are no facts in the record other than the allegations in the petition which mu st be taken as true.
Royal Clothing Co. v. Holloway, 208 Tenn. 572, 574, 347 S.W.2d 491, 492 (1961) (holding that in the absence of a
record, the factual statements in a petitio n fo r c om mon-law writ of certiorari m ust be taken as true); White v. Revco
Discount Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn. 2000) (holding that Tenn. R. Civ. P. 12.02(6) m otions require
the co urts to p resum e that a com plaint’s factual allegations are true).

          7
         While both Mr. Willis and M r. Tharpe filed a n otice o f app eal, on ly M r. Tharpe has filed a brief with this
court. Accordingly, M r. Willis’s appeal should be dism issed in accordance with Ten n. R. App. P. 29(c).

          8
              Sandin v. Conner, 515 U.S. at 484, 115 S. Ct. at 2300.

                                                              -3-
that would entitle them to relief. The holding of Sandin v. Conner is that a prisoner who files a 42
U.S.C. § 1983 suit challenging a prison disciplinary proceeding based on a failure to follow a state
statute, rule, or policy states a claim for relief only if the punishment the prisoner received imposes
a significant hardship that is atypical of the normal incidents of prison life. Thus, Sandin v. Conner
is only directly applicable to actions in state and federal court under 42 U.S.C. § 1983.9

         Petitions for a common-law writ of certiorari serve different purposes and provide different
relief than actions under 42 U.S.C. § 1983. A common-law writ of certiorari permits the courts to
examine a lower tribunal’s decision to determine whether the tribunal exceeded its jurisdiction or
acted illegally. Robinson v. Clement, 65 S.W.3d at 635; Turner v. Tennessee Bd. of Paroles, 993
S.W.2d 78, 80 (Tenn. Ct. App. 1999). For the purpose of a common-law writ of certiorari, illegal
actions include decisions that are arbitrary and capricious. Cooper v. Williamson County Bd. of
Educ., 746 S.W.2d 176, 179 (Tenn. 1987); Davison v. Carr, 659 S.W.2d 361, 363 (Tenn. 1983); 421
Corp. v. Metropolitan Gov’t, 36 S.W.3d 469, 474 (Tenn. Ct. App. 2000). What could be more
arbitrary and capricious than a rule-maker refusing to abide by its own rules?

                                                         B.

        A common-law writ of certiorari provides judicial relief in more circumstances than an action
under 42 U.S.C. § 1983. Section 1983 provides a federal cause of action for the violation of rights
secured by the United States Constitution or federal law. Pendleton v. Mills, ___ S.W.3d at ___,
2001 WL 1089503, at *5; Parks Properties v. Maury County, 70 S.W.3d 735, 743 (Tenn. Ct. App.
2001). On the other hand, a common-law writ of certiorari provides a judicial remedy whenever a
lower tribunal exercising judicial functions has exceeded its jurisdiction or has otherwise acted
illegally. Tenn. Code Ann. § 27-8-101 (2000); Robinson v. Clement, 65 S.W.3d at 635; Turner v.
Tennessee Bd. of Paroles, 993 S.W.2d at 80. Thus, a common-law writ of certiorari may be used
to grant relief in circumstances that do not warrant relief under 42 U.S.C. § 1983. Franklin v.
Tennessee Dep’t of Corr., No. M2001-00279-COA-R3-CV, 2001 WL 1386089, at *4 (Tenn. Ct.
App. Nov. 8, 2001 (No Tenn. R. App. P. 11 application filed).

       One of the ways in which a lower tribunal acts illegally is when it follows an unlawful
procedure. Watts v. Civil Serv. Bd., 606 S.W.2d 274, 277 (Tenn. 1980); Nevills v. South Cent. Corr.
Disciplinary Bd., No. M2000-02324-COA-R3-CV, 2001 WL 1117066, at *3 (Tenn. Ct. App. Sept.
25, 2001) (No Tenn. R. App. P. 11 application filed); Lafferty v. City of Winchester, 46 S.W.3d 752,
758-59 (Tenn. Ct. App. 2000). The Tennessee Supreme Court has specifically approved using a
common-law writ of certiorari 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. State v. Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980). Accordingly, a



         9
          Actions und er 42 U.S.C. § 198 3 m ay be filed in state court. Wimley v. Rudolph, 931 S.W.2d 513, 515 (Tenn.
199 6); Poling v. Goins, 713 S.W .2d 3 05, 3 06 (Ten n. 19 86).

                                                         -4-
common-law writ of certiorari can be used to address the denial of procedural rights secured by the
federal and state constitutions,10 state statute,11 or state, federal, or local regulations.12

        This court has been more diffident about whether violations of the Department’s Uniform
Disciplinary Procedures warrant relief under a common-law writ of certiorari. Initially, we
concluded that departures from these procedures could be “so extreme as would compel the trial
court to issue a writ of certiorari.” Wilson v. South Cent. Corr. Facility Disciplinary Bd., No.
M2000-00303-COA-RM-CV, 2000 WL 1425228, at *5 (Tenn. Ct. App. Sept. 28, 2000) (No Tenn.
R. App. P. 11 application filed). More recently, we held that a failure to adhere to the requirements
of the Uniform Disciplinary Procedures would not amount to a failure to “follow the essential
requirements of the law” unless the punishment imposed an atypical and significant hardship beyond
the ordinary incidents of prison life. Ahkeen v. Campbell, No. M2000-02411-COA-R3-CV, 2001
WL 1346250, at *7 (Tenn. Ct. App. Nov. 2, 2001) (No Tenn. R. App. P. 11 application filed).13

        The Department’s Uniform Disciplinary Procedures have not and need not be promulgated
as rules using the rule-making procedures in the Uniform Administrative Procedures Act. Mandela
v. Campbell, 978 S.W.2d 531, 534 (Tenn. 1998). However, the policies exist “[t]o provide for the
fair and impartial determination and resolution of all disciplinary charges placed against inmates.”
TDOC Policy No. 502.01(II). The policy is the sole source of the Department’s disciplinary
procedures. While it “is not intended to create any additional due process guarantees for inmates
beyond those which are constitutionally required,” deviations from the policy will warrant dismissal
of the disciplinary offense if the prisoner demonstrates “some prejudice as a result and the error
would have affected the disposition of the case.” TDOC Policy No. 502.01(V).

        Accordingly, I would hold that a prisoner seeking judicial review of a prison disciplinary
proceeding states a claim meriting relief under a common-law writ of certiorari if the prisoner’s
complaint alleges facts demonstrating that the failure to follow the Uniform Disciplinary Procedures
affected the disposition of the disciplinary proceeding to the prisoner’s prejudice. Stated in terms
more traditionally associated with a common-law writ of certiorari, a prisoner states a claim
warranting the issuance of a writ of certiorari to review the record of a disciplinary proceeding if his

         10
              State v. Wom ack, 591 S.W .2d 437, 442 (Tenn. Ct. App . 1979).

         11
           Hoover v. Metrop olitan Bd. of Zoning Appea ls, 924 S.W.2d 900, 905 (Tenn. Ct. App. 199 6); Brooks v.
Fisher, 705 S.W .2d 1 35, 1 36 (Ten n. Ct. A pp. 1 985 ); Harless v. City of Kingsp ort, No. 03A01-9707-CH-00289, 1998
WL 13151 9, at *5 (Tenn. Ct. App . Mar. 25, 1998 ) (No Ten n. R. App. P. 11 ap plication filed).

         12
             See Fox v. Tennessee Bd. of Paroles, No. 01A01-9506-CH-00263, 1995 WL 681135, at *3 (Tenn. Ct. App.
Nov. 17, 1995) (No Tenn. R. App. P. 11 application filed) (holding that an allegation of failure to provide a righ t or
ben efit to which the claimant is entitled under state law or regulation states a claim for relief through a commo n-law
writ of certiorari).

         13
             The court conditioned this conclusion by ob serving that “[w]e do not imply that a statutory violation cannot
con stitute a failure to conform to the essential requ irem ents of the law.” While this statement is undo ubtedly correct,
it does not imply that the government’s obligation to follow its own procedures depends on whether these procedures
are mandated by statute, rule, regulation, or policy.

                                                           -5-
or her petition contains factual allegations demonstrating that the prisoner was prejudiced (1) by
being effectively denied a hearing, (2) by plain and palpable abuse of the hearing officer’s, the
chairperson’s, or the disciplinary board’s discretion, or (3) by hearing officers, chairpersons, or
boards following an unlawful procedure.

                                                            C.

         It is not our prerogative at this stage of the proceedings to analyze the substantive merits of
Mr. Tharpe’s claims because the Department elected to file a Tenn. R. Civ. P. 12.02(6) motion rather
than the record of the disciplinary hearing.14 Our only task is to review Mr. Tharpe’s petition, taking
its factual allegations as true, to determine whether it states a claim or claims upon which the relief
available through a common-law writ of certiorari can be granted.

        Mr. Tharpe’s petition contains factual allegations depicting three departures from the
Department’s Uniform Disciplinary Rules. First, it alleges that Messrs. Tharpe and Willis did not
receive adequate notice of the disciplinary charges. Second, it asserts that Messrs. Tharpe and Willis
were prevented from obtaining and presenting relevant evidence. Finally, it alleges that the
disciplinary board did not independently assess and verify the reliability of the confidential
informant’s evidence. If substantiated, these deviations from the Uniform Disciplinary Procedures,
considered individually or collectively, could have affected the outcome of the disciplinary
proceeding to the prisoners’ prejudice.

         The petition states that Messrs. Tharpe and Willis “were not placed on notice prior to their
hearings of the specific charges against which they would have to defend.” If substantiated, the
failure to provide notice would be a violation of the notice requirements in the Uniform Disciplinary
Procedures15 which could very easily have prejudiced the prisoners’ ability to defend themselves.16
In the absence of a record, we must take the allegations in the petition as true and must construe the




         14
            W e have already q uestioned the wisdom of the tactic of filing a motion to dismiss or summary judgment
without filing the com plete record in case s of this so rt. Livingston v. State, N o. M 1999-01138-C OA -R 3-C V, 2001 WL
747643, at *5 (Ten n. Ct. A pp. Ju ly 5, 2001 ) (No Ten n. R. A pp. P . 11 application filed) (sta ting that the co urt is
“troubled” by the tactic of seeking a sum mary jud gme nt supported only b y carefully selected portions of the record).
I have little doubt that had the Department filed the complete record o f the d isciplinary hearing in this case, the
information in the record w ould have p rovided a sufficient factual basis for declining to grant Mr. Tharp e relief.

         15
            Prisoners are en titled to notice o f their d isciplinary infraction by receiving written notice of the charges
(usually in the form of a copy of the disciplinary report) at least twenty-four hours before the hearing before the
disciplinary board. TDO C Po licy N o. 50 2.01 (VI)(A)(3)(c ), -(VI)(D)(3)(b ).

         16
            This allegation can reasonably be interpreted to mean either that Messrs. Tharpe and Willis received no notice
of the charges against them or that the notice they receiv ed w as som eho w d efectiv e. Th e form er circu mstance wo uld
be paten tly prejudicial, wh ile the prejud icial nature of the latter circumstance would depend on the particular
shortcoming of the challenged notice.

                                                           -6-
petition as alleging that the prisoners received no notice of the charges prior to the hearing.17 If
substantiated, a failure to give notice of the charges would have been a clear violation of the Uniform
Disciplinary Rules that would have prejudiced the prisoners.

        The petition also alleges that the disciplinary board prevented Messrs. Tharpe and Willis
from obtaining and introducing relevant “exculpatory” evidence. If substantiated, this conduct
would likewise be contrary to the prisoners’ qualified right to introduce evidence and call witnesses
in disciplinary proceedings.18 In the absence of a record, we must presume that Messrs. Tharpe and
Willis made timely requests for the witnesses and documents and that permitting them to call their
witnesses would not have jeopardized safety or order in the institution. The evidence they desired
to present involved the chain of custody of the pliers found in their cell. This evidence was certainly
relevant and could have affected the outcome of the proceeding. Accordingly, at least on its face,
we must presume that refusing to permit Messrs. Tharpe and Willis to present this evidence was
prejudicial.

        Finally, Messrs. Tharpe and Willis assert that the disciplinary board did not independently
assess the credibility of a confidential informant whose testimony apparently formed part of the basis
for finding them guilty of attempted escape.19 This allegation, if substantiated, would be a serious
departure from the Uniform Disciplinary Procedures which require the chairperson to independently
“assess and verify the reliability of the informant’s testimony” and, when the information provides
a basis for the board’s decision, “to document the factual basis for the disciplinary hearing
officer’s/chairperson’s finding that the informant’s information was reliable.” TDOC Policy No.
502.01(VI)(E)(2)(e). Compliance with this procedure fosters the reliability of prison disciplinary
proceedings because prisoners can be denied the opportunity to confront and cross-examine their
accusers when prison officials are concerned about reprisals or other security concerns. Williams
v. Fountain, 77 F.3d 372, 374-75 (11th Cir. 1996). In the absence of a record, we must presume that
the allegations in the petition are true. Failing to independently verify the credibility of the
confidential informant could easily have prejudiced both Mr. Tharpe and Mr. Willis because it could



         17
             Mr. Tharpe states in h is pro se brief that he “was issued disciplinary infraction report no. TC107423/378998
for the alleged offense of ‘A ttempted Esca pe,’” and attached a c opy of this report to his brief. This docum ent is not part
of the appellate record because it was not introduced in the trial court. We cannot take judicial notice of materials
appended to briefs that are not properly part of the record on appeal. Vanderbilt Univ. v. Henderson, No. M1998-00929-
COA-R3-CV, 2001 WL 1216980, at *5, n. 4 (Tenn. Ct. App. Oct. 12, 2001) (No Tenn. R. App. P. 11 application filed);
State v. Cooper, 736 S.W .2d 1 25, 1 31 (Ten n. Crim. A pp. 1 987 ).

         18
            Prisoners do not have an u nqu alified rig ht to ca ll witnesses in disciplinary proceed ings. Wo lff v. McDo nne ll,
418 U.S. 539, 566-67, 94 S. Ct. 2963, 2980 (1974). Accordingly, TDOC Policy No. 502.01(VI)(E)(2 (c) (6) perm its
prisoners “to present testimony of relevant witnesses unless allowing a witness to appear would pose a threat to the
institutional safety or order.” Prison ers must co mp lete witness request forms in a timely manner, TDOC Policy No.
502.01(VI(E)(2)(d)(1), but the chairperson of the disciplinary board may also use his or her discretion to allow other
prisoners or staff memb ers to testify even in the absence of a timely request. TDO C Policy No. 502 .01(VI)(E)(2)(d)(2).

         19
             They assert that this informant was another prisoner who “concocted” the escape story to induce the prison
officials to drop drug possession charges that were pending against him.

                                                              -7-
have caused them to be convicted of a serious disciplinary offense based on false or unreliable
evidence.

                                                  III.

         The imposition of punishment without a reliable determination of guilt is senseless, even
when the proceeding involves a prisoner in a state correctional institution. Measuring the fairness
of a prison disciplinary proceeding only by its outcome effectively puts the cart before the horse and
gives the Department carte blanche to ignore its own rules as long as the punishment meted out is
not too harsh. Undermining the truth-finding function of a prison disciplinary hearing by ignoring
the very policies designed to assure that the proceedings will be “ fair and impartial” is precisely the
sort of arbitrary and capricious conduct that can be corrected using a common-law writ of certiorari.
Accordingly, I would find that the petition Mr. Tharpe filed in this case states a claim for which
relief can be granted, and I would remand the case to the trial court with directions to issue the writ
of certiorari, direct the Department to file the record, and then address the substance of Mr. Tharpe’s
claims in light of the record of the proceedings.



                                                         _____________________________
                                                         WILLIAM C. KOCH, JR., JUDGE




                                                  -8-
