                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                      ASSIGNED ON BRIEFS APRIL 21, 2011

        HAROLD B. SCHAFFER v. TENNESSEE DEPARTMENT OF
                      CORRECTION, ET AL.

            Direct Appeal from the Chancery Court for Hickman County
                    No. 10-016C     Jeffrey S. Bivins, Chancellor


                 No. M2010-01742-COA-R3-CV - Filed May 12, 2011


Appellant was found guilty of a disciplinary offense while in the custody of the Tennessee
Department of Correction. The chancery court granted Appellant’s petition for writ of
certiorari, and, finding no entitlement to relief based upon the administrative record, it
dismissed the petition. Appellant appeals, 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.

Harold B. Schaffer, Nashville, Tennessee, pro se

Robert E. Cooper, Jr., Attorney General and Reporter, Kellena Baker, Assistant Attorney
General, Nashville, Tennessee, for the appellee, Tennessee Department of Correction, et al
                                              OPINION

                              I.   F ACTS & P ROCEDURAL H ISTORY

       Harold B. Schaffer (“Appellant”) is an inmate in the custody of the Tennessee
Department of Correction (“TDOC”) housed at the Turney Center Industrial Complex
(“TCIX”) in Only, Tennessee. Appellant was charged in case #813407 with the prison
disciplinary offense of conspiracy to violate state law based on Tennessee Code Annotated
section 39-16-507, coercion of a witness. Following a disciplinary hearing on October 21,
2009, the TCIX disciplinary board found Appellant guilty of the offense, and as a result,
imposed a $5.00 fine and twenty days punitive segregation. The board also recommended
that Appellant be placed in administrative segregation and that he lose ninety days of
sentence credits. The warden approved both recommendations.

       Appellant then filed a petition for common law writ of certiorari in the Hickman
County Chancery Court seeking review of his conviction. TDOC did not oppose Appellant’s
petition, and the trial court entered an order granting Appellant’s petition for writ of
certiorari. The trial court found that Appellant was not entitled to relief based upon the
administrative record, and it dismissed the petition. Appellant timely appealed.


                                      II.   I SSUES P RESENTED

Appellant presents the following issues for review, summarized as follows:

1.      Whether the trial court correctly concluded that the disciplinary board did not exceed
        its jurisdiction or act illegally, arbitrarily, or capriciously in convicting Appellant of
        conspiracy to violate state law;

2.      Whether the minimum requirements of due process of law in disciplinary board
        hearings were met; and

3.      Whether the board complied with TDOC policy in recommending Appellant’s
        placement in administrative segregation.1

For the following reasons, we affirm the decision of the chancery court.


        1
          Appellant also lists as an issue on appeal that TDOC “failed to certify and file the record.”
However, Appellant fails to explain the information allegedly excluded, and the record indicates that TDOC
filed a certified copy of the administrative record.

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                                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
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),

                                               -3-
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)).

                                           IV. D ISCUSSION

A. Whether Board Exceeded Jurisdiction or Acted Illegally, Arbitrarily or Capriciously

        On appeal, Appellant argues that the disciplinary board exceeded its jurisdiction or
acted illegally, arbitrarily or capriciously in convicting him. First, he claims that criminal,
as opposed to disciplinary, charges were brought against him, and that his case should have
been referred to the Attorney General. Next, he claims that the disciplinary report “fail[ed]
to appropriately state and identify the offense[] for which the appellant must answer and
defend[,]” and that his conviction “was not supported by any evidence[.]” He further argues
that the board improperly relied upon confidential information without a “written statement”
from the informant “that states, testifies or provides proof that the appellant committed the
act of conspiracy[.]” Finally, he contends that he was denied a fair and impartial hearing
because his former case manager, Sheryl Watson, participated in the disciplinary hearing in
violation of TDOC policy, and because board member Kathy Scott was allowed to participate
in the hearing despite her involvement in the incident for which Appellant attempted to
coerce testimony.

       First, we reject Appellant’s assertion that he was charged with a criminal offense and
that the disciplinary report failed to sufficiently apprise him of the offense charged. The
disciplinary report alleges that Appellant “did intimidate, co[erce] and place [] unwanted
influence” on another inmate “into signing a not[a]rized statement that he made false
statements during an official administrative hearing[.]” It clearly states that Appellant is
“charged with CVS-39-16-5072 coercion of a witness” and it identifies the “Incident Type”
as “Conspiracy to Violate State L[aw,]” which is defined in TDOC Policy 502.05(VI)(A)(8):

       Conspiracy to Violate State Law (CVS) (Class A or B): Two or more persons,


       2
           Tennessee Code Annotated section 39-16-507 provides in relevant part:

       (a) A person commits an offense who, by means of coercion, influences or attempts to
       influence a witness or prospective witness in an official proceeding with intent to influence
       the witness to:

       (1) Testify falsely;
       (2) Withhold any truthful testimony, truthful information, document or thing[.]

                                                   -4-
       each having the culpable mental state required for the offense which is the
       object of the conspiracy and each acting for the purpose of promoting or
       facilitating the commission of a state criminal offense, agreeing that one or
       more of them will engage in conduct which constitutes such offense. If a
       person guilty of conspiracy knows that another with whom the person
       conspired to commit a criminal offense has conspired with one or more other
       persons to commit the same offense, the person is guilty of conspiring with
       such other person or persons, whether or not their identity is known, to commit
       such offense. The state law and TCA Code violated shall be cited in the
       incident report.

        Next, we find that the board properly relied upon confidential information. TDOC
Policy 502.01(VI)(L)(4)(c)(3) provides that an inmate pleading not guilty has the right to
“cross-examine any witness (except a confidential source) who testified against him/her and
to review all adverse documentary evidence (except confidential information).” “Whenever
confidential information or confidential security sensitive evidence is utilized by the
disciplinary hearing officer/chairperson as a basis for its decision, the TDOC
Contemporaneous Record of Confidential Informant Reliability, CR-3510, shall be
completed to document the factual basis for the disciplinary hearing officer’s/chairpersons’s
finding that the informant and/or security sensitive evidence was reliable.” TDOC Policy
502.01(VI)(L)(4)(g). In this case, a CR-3510 form was completed by the board chairperson
indicating that a confidential informant had identified Appellant as the person who coerced
“him into signing a false and untrue statement, which was submitted to Warden Fortner[.]”
It further stated that the investigating officer had offered a sworn statement before the board
of the informant’s reliability based upon his proven reliability in “specific past instances.”
We find no TDOC policy provision, and Appellant does not cite any such authority, to
support Appellant’s assertion that confidential information cannot be relied upon unless a
“written statement” from the informant is included in the administrative record. In sum, we
find that the board complied with TDOC policy regarding confidential evidence.

        We also find that evidence was presented to support Appellant’s conviction. As we
stated above, “[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)
(emphasis added). At the hearing, the disciplinary board considered the testimony of both
Appellant and the investigating officer as well as information from a confidential informant.
Despite Appellant’s assertion that the investigating officer’s testimony is inadmissible
hearsay, the board was required to consider such testimony if it found it reliable. See TDOC
Policy 502.01(VI)(L)(4)(c)(2) (“The board/hearing officer shall consider all evidence which
it finds to be reliable, whether or not such evidence would be admissible in a court of law.”).
The board simply credited the testimony of the investigating officer and the confidential

                                              -5-
informant over that of Appellant, and we do not have authority to reweigh the evidence. See
Robinson v. Clement, 65 S.W.3d 632, 637 (Tenn. Ct. App. 2001) (stating that a common law
writ of certiorari cannot be used to attack the intrinsic correctness of the board’s decision nor
to seek a re-weighing of the evidence).

       Finally, we reject Appellant’s argument that he was denied a fair hearing based upon
the participation of Sheryl Watson and Kathy Scott. TDOC Policy 502.01(VI)(A)(5)
provides that no employee shall sit on the disciplinary board of a case if any of the following
conditions exist:

       a.     He/she is the reporting employee.
       b.     He/she participated directly in the investigation.
       c.     He/she has personal knowledge concerning the case, except in those
              instances where knowledge of the incident is so widespread as to be
              known by most employees (i.e., common knowledge).
       d.     He/she has a personal interest in the outcome of the case.
       e.     He/she is the inmate’s assigned counselor, inmate relations coordinator
              (IRC), or unit manager.

Appellant concedes that Sheryl Watson was not his case manager at the time of the hearing;
however, he claims that Ms. Watson was his case manager during the “time of the
investigation” and that she was also the case manager of the inmate whom Appellant
allegedly coerced into signing a false statement. Without further explanation, Appellant
states that “[d]uring this investigation case manager Watson obtained first hand information
on or around September 19th , 2009 from [the investigating officer] concerning the appellant
which prejudiced the appellant and denied him a fair hearing.” Because TDOC policy does
not prevent an inmate’s former case manager from participating in a disciplinary hearing, and
because Appellant has failed to point to evidence supporting his allegation that Ms. Watson
obtained certain information which prejudiced him, we find that Ms. Watson’s participation
did not deny Appellant a fair hearing.

       Appellant asserts that Kathy Scott should not have been allowed to participate in the
hearing because he claims she was “directly involved” in case #805351–the case for which
Appellant attempted to coerce false testimony. Unfortunately, Appellant cites no evidence
to support his conclusory assertion of Ms. Scott’s involvement in case #805351.
Furthermore, assuming, arguendo, that Ms. Scott was involved in case #805351, we find that
case #805351 is independent from the case at hand.




                                               -6-
                                         B. Due Process

       As a result of Appellant’s conviction, the board imposed a $5.00 fine against him as
well as twenty days punitive segregation.3 It further recommended, and the warden
approved, that Appellant be placed in administrative segregation and that he lose ninety days
of sentence credits. Appellant argues that he was not notified of the recommendations
regarding loss of sentence credits and placement in administrative segregation until after the
warden had approved such. Thus, he contends, he was not afforded procedural 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, 110 S.Ct. 975, 108 L.Ed.2d 100 (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, 115 S.Ct. 2293, 132 L.Ed.2d 418 (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, 94 S.Ct. 2963, 41 L.Ed.2d 935 (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)).




       3
         Brief periods of disciplinary segregation and “de minimus” fines do not invoke due process
protections. See Sandin, 515 U.S. 472, 483-85; Irwin v. Tenn. Dep’t of Corr., 244 S.W.3d 832, 835 n.2
(Tenn. Ct. App. Aug. 13, 2007)

                                                 -7-
       “A prisoner has no constitutional right to remain free of administrative segregation
which is discretionary with prison officials because ‘the transfer of an inmate to less
amenable and more restrictive quarters for nonpunitive reasons is well within the terms of
confinement ordinarily contemplated by a prison sentence.’” Woodruff v. Tenn. Dep’t of
Corr., No. M2001-00494-COA-R3-CV, 2002 WL 1974138, at *5 (Tenn. Ct. App. Aug. 28,
2002) (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983)); see also Jones v. Baker, 155
F.3d 810, 812 (6th Cir. 1998) (“Administrative segregations have repeatedly been held not
to involve an ‘atypical and significant’ hardship implicating a protected liberty interest
without regard to duration[.]”; Mackey v. Dyke, 111 F.3d 460, 463 (6 th Cir. 1997) (“After
Sandin, a prisoner cannot argue that placement in administrative segregation is an ‘atypical
and significant hardship.’”). However, “the 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)). Because his liberty interests have
been implicated in this case, with regard to loss of sentence credits, we must determine
whether Appellant was afforded the due process requirements set forth in Wolff.


       In the instant case, Appellant received notice of the charges against him on October
2, 2009, prior to the disciplinary hearing on October 21, 2009. At the hearing before an
impartial board, Appellant, himself, testified, and he presented the testimony of an additional
witness. Following the hearing, the board completed a “Disciplinary Report Hearing
Summary,” which included its “findings of fact and specific evidence relied upon to support
those findings[.]”4 Thus, we conclude that the minimum due process requirements
established in Wolff have been satisfied.


                                   C.    Administrative Segregation


        Finally, Appellant asserts that he does not meet the criteria for placement in
administrative segregation, and that his placement in such was not in accordance with TDOC
policy, as he claims he “was not given an opportunity to be heard on his placement.” TDOC
Policy 404.10(IV)(A) defines “Administrative Segregation (AS)” as “[t]he non-punitive
segregation of inmates, for control purposes, who are believed to be a threat to the security
of the institution, the welfare of staff, or to other inmates in the community.” Following a
hearing for a disciplinary rule infraction, “the board may recommend that an inmate be


       4
           Appellant did not sign this document; however, he does not argue on appeal that he did not receive
it.

                                                     -8-
placed in AS when it is believed that their continued presence in the general population may
present a threat to security, the staff, or other inmates and the community.” TDOC Policy
404.10(VI)(3). The board must verbally advise the inmate of its recommendation, and the
inmate must be given an opportunity to present a statement during the hearing. TDOC Policy
404.10(VI)(3)(a). Additionally, “[t]he board shall clearly state the reason(s) for the
recommendation on the AS Placement Report sent to the Warden for approval along with any
pertinent information regarding the offense which was available to the board at the panel
hearing.” TDOC Policy 404.10(VI)(3)(b).


        Here, the Administrative Segregation Placement form recommends administrative
segregation based upon Appellant’s being found guilty of conspiracy to violate state law, as
well as his pleading guilty to two incidents of “attempt to intimidate employees.” It further
states that “[t]he Board feels that [Appellant] is a threat to the staff, inmates[,] plus the
security of the Institution.” Appellant refused to sign the form, but the form indicates that
Appellant “asked to be placed on administrative segregation[,]” demonstrating that Appellant
was given an opportunity to present a statement regarding segregation. Due to the
“seriousness of the charges and incidents surrounding [Appellant],” the warden approved the
board’s recommendation. We find that Appellant’s placement into administrative
segregation is supported by TDOC policy.


                                    V.    C ONCLUSION


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


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




                                             -9-
