             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE

                                                           FILED
                                                            October 14, 1998
LAWTIS DONALD RHODEN,                     )
                                          )
                                                           Cecil W. Crowson
       Petitioner/Appellant,              )
                                          )   Appeal No.  Appellate Court Clerk
                                          )   01-A-01-9711-CH-00636
VS.                                       )
                                          )   Davidson Chancery
                                          )   No. 96-3341-I(II)
STATE DEPARTMENT OF                       )
CORRECTION,                               )
                                          )
       Respondent/Appellee.               )


      APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE

              THE HONORABLE CAROL L. MCCOY, CHANCELLOR




GARY L. ANDERSON
University of Tennessee Legal Clinic
1505 W. Cumberland Avenue
Knoxville, Tennessee 37996-1810
      Attorney for Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General and Reporter

JOHN R. MILES
c/o Attorney General and Reporter
425 5th Avenue North
Nashville, Tennessee 37243-0488
       Attorney for Respondent/Appellee



                           AFFIRMED AND REMANDED



                                              BEN H. CANTRELL, JUDGE


CONCUR:
TODD, P.J., M.S.
KOCH, J.
                                       OPINION


                An inmate in the correction department sought a declaratory judgment

concerning his sentence credits. The Chancery Court of Davidson County dismissed

the petition (1) because the proper avenue for relief was a writ of certiorari to

challenge the disciplinary action that caused the loss of his sentence credits, and (2)

because the failure to give him sentence credits while he was under a California

detainer did not violate his equal protection rights. We affirm.1



                                                  I.



                Lawtis Donald Rhoden received a twenty year sentence for rape in 1985.

In August of 1995, while Mr. Rhoden was an inmate at the Turney Center, correction

officers confiscated seven pamphlets which he had received through the mail from an

organization advocating racial purity. Mr. Rhoden alleges that the written material

does not advocate violence or other illegal activity and is not so racially inflammatory

that it would likely cause violence within the prison.



                The Turney Center Disciplinary Board found Mr. Rhoden guilty of

possessing the literature, sentenced him to ten days in punitive segregation and

recommended his placement in administrative segregation, maximum security status.

Following the Department’s appeal procedures, the prison warden approved the

Board’s recommendation and the Commissioner of Correction signed off on the

punishment on September 6, 1995.



                While in maximum security Mr. Rhoden could not earn the sixteen days

credit he had been earning each month. In February of 1996 and April of 1997, Mr.


        1
        The question of the effect of the California detainer on the petitioner’s rights was not argued
on appeal, so we do not deal with it in this opinion.

                                                 -2-
Rhoden’s security status was reduced in steps back to minimum security, but he lost

sentence credits in each step by not being able to earn the maximum credits available

if he had been in minimum security. He alleges that in all he lost seven months of

credits for the possession of constitutionally protected materials.



                In the meantime, in August of 1996, Mr. Rhoden filed a petition for a

declaratory order with the Department of Correction seeking a return of the sentence

credits lost as a result of the disciplinary proceeding. The Department denied the

petition in a letter dated August 27, 1996.



                On October 25, 1996, Mr. Rhoden filed a petition for review in the

Chancery Court of Davidson County challenging the loss of his sentence credits. The

petition recited that it was filed pursuant to Tenn. Code Ann. § 4-5-322.2 The

Department of Correction filed a motion to dismiss on the grounds that the court

lacked jurisdiction over the subject matter and that the petition failed to state a cause

of action. The court dismissed the petition because it was essentially an action

challenging the results of the disciplinary proceeding and a review of that proceeding

should have been sought within sixty days by a petition for the common law writ of

certiorari.



                                                II.



                A prisoner disciplinary proceeding cannot be reviewed directly under the

Uniform Administrative Procedures Act because the Act removes such proceedings

from the definition of a contested case. Tenn. Code Ann. § 4-5-106(b). The proper

vehicle for challenging a disciplinary action is a petition for a common law writ of

certiorari, and the petition must be filed within sixty days of the challenged action.


        2
         Tenn. Code Ann. § 4- 5-322 p rovides fo r a review o f a conte sted ca se. A petition for a
declaratory judgment, after an agency has refused a declaratory order, is authorized by Tenn. Code
Ann. § 4-5-225. For this reason alone the petitioner failed to state a cause of action.

                                               -3-
Bishop v. Conley, 894 S.W.2d 294 (Tenn. Cr. App. 1994). See Tenn. Code Ann. §

27-9-102.



              Mr. Rhoden alleges, however, that he is not seeking a review of the

disciplinary proceedings. Instead he “is attacking the unlawful actions of the T.D.O.C.;

and the Commissioner of the T.D.O.C. in punishing him for mere possession of

constitutionally protected literature.” We fail to see the distinction. But giving him the

benefit of the doubt, the proper procedure for attacking a rule of the Department is set

out in Tenn. Code Ann. § 4-5-223.



              Tenn. Code Ann. § 4-5-223(a) of the UAPA allows any person affected

by a state statute or an order or rule of a state agency to petition the agency for a

declaratory order as to the validity or applicability of the rule, statute, or order. The

agency can then (1) convene a contested case hearing and issue the declaratory

order, Tenn. Code Ann. § 4-5-323(a)(1), or (2) refuse to issue the order, Tenn. Code

Ann. § 4-5-223(a)(2). In cases where the agency refuses to issue the declaratory

order, the affected person may seek a declaratory judgment in the Chancery Court of

Davidson County. Tenn. Code Ann. § 4-5-224(a).



              Mr. Rhoden’s petition does not state a claim for a declaratory judgment

under the UAPA. He is not challenging a statute or an agency rule or order -- except

the order resulting from the disciplinary proceeding. In effect he is challenging the

factual conclusion arrived at during the disciplinary proceeding that the literature found

in his possession violated the Department’s rules. That determination should have

been reviewed by a direct review of the disciplinary proceeding.



              This case can be distinguished from Gilbreth v. Bradley, 01-A-01-9402-

CH-00083 (Nashville, September 21, 1994), in which the inmate did seek a

declaratory judgment concerning the application of a statute to inmates sentenced


                                          -4-
under prior law. The issue in Gilbreth was not whether the prisoner should have been

disciplined but whether the punishment imposed by the Department exceeded its

authority under the statute in question.



              The judgment of the trial court is affirmed and the cause is remanded

to the Chancery Court of Davidson County for any further proceedings necessary.

Tax the costs on appeal to the appellant.




                                           _________________________________
                                           BEN H. CANTRELL, JUDGE




CONCUR:




_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION




_______________________________
WILLIAM C. KOCH, JR., JUDGE




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