                                                                                           01/30/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                        Assigned on Briefs September 1, 2017

    ERIC BERNARD HOWARD v. TURNEY CENTER DISCIPLINARY
                      BOARD ET AL.

                Appeal from the Chancery Court for Hickman County
                  No. 16-CV-5773      Joseph A. Woodruff, Judge


                             No. M2017-00230-COA-R3-CV



Eric Bernard Howard, an inmate at the Turney Center Industrial Complex, was charged
with the disciplinary offense of defiance. The conduct at issue occurred at the
institution’s medical clinic. Howard became angry, used profanity, and physically struck
clinic property. After a hearing, he was found guilty by “alternate disciplinary officer”
Rachel McCauley. Howard filed a petition for common law writ of certiorari with the
trial court, alleging that he was denied due process at his hearing. He further asserted that
the governing Uniform Disciplinary Procedures of the Tennessee Department of
Correction (TDOC) were not followed. He says this resulted in substantial prejudice to
him. The trial court found no due process violation, and ruled that any deviation from the
Uniform Disciplinary Procedures was minimal and did not result in substantial prejudice.
The trial court dismissed the petition. We affirm the judgment of the trial court.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and ARNOLD B. GOLDIN, JJ., joined.

Eric Bernard Howard, Only, Tennessee, appellant, pro se.

Herbert H. Slatery, III Attorney General and Reporter, Andrée S. Blumstein, Solicitor
General, and Charlotte Davis, Assistant Attorney General, Nashville, Tennessee, for the
appellees, Turney Center Disciplinary Board, Rachel McCauley, Kevin Genovese, and
Derrick Schofield.


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                                        OPINION

                                              I.

       TDOC’s disciplinary report alleges that “on the evening of March 24, 2016 inmate
Eric Howard . . . became disruptive with medical staff to the point where he was using
profanity and he was banging on stationary property inside the clinic.” He was charged
with defiance. Howard was given a copy of the disciplinary report on March 31, 2016.
A hearing before the alternative hearing officer, respondent Cpl. Rachel McCauley, took
place on April 1, 2016. Two persons testified: Howard, and Internal Affairs officer Sgt.
Dustin Mackin, who presented evidence deemed confidential by TDOC – evidence that
TDOC says supported the charge and conviction. Cpl. McCauley found him guilty of
defiance. The discipline imposed on Howard was five days in punitive segregation, a
nine-month package restriction, and a four dollar fine.

       He appealed to the warden, and then to the TDOC commissioner, both of whom
upheld his conviction. Having exhausted his administrative remedies, Howard filed a
petition for common law writ of certiorari in the trial court. He alleged that (1) Cpl.
McCauley was not authorized to hear his case under the Uniform Disciplinary
Procedures; (2) his hearing was held 21.5 hours after he was notified of the charge,
contrary to the Procedures’ requirement of a minimum 24 hours; and (3) the confidential
information was not properly presented under the Procedures. The State did not oppose
the petition, and the trial court granted it. Respondents moved for judgment on the
record. The trial court found that the hearing officer was authorized to hear the case, the
21.5 hour notice was a minor deviation from the Uniform Disciplinary Procedures that
did not substantially prejudice Howard, and that the confidential evidence was properly
presented at the hearing. The court granted the motion and dismissed the petition.
Howard timely filed a notice of appeal.

                                              II.

       The issue presented on appeal is whether the alleged procedural defects at
Howard’s hearing constitute deviations from the Uniform Disciplinary Procedures that
resulted in a violation of his constitutional due process rights or substantial prejudice to
him.

                                            III.

       As this Court has recently observed:



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The common-law writ of certiorari is the procedural vehicle
prisoners may use to obtain a review of decisions by prison
disciplinary boards, parole eligibility review boards, and other
similar administrative tribunals. Willis v. Tenn. Dep’t of
Corr., 113 S.W.3d 706, 712 (Tenn. 2003); see Tenn. Code
Ann. § 27–8–101 (providing that the writ may be granted
where an inferior tribunal, board, or officer exercising judicial
functions exceeds jurisdiction or acts illegally and no other
plain, speedy, or adequate remedy is available); Davison v.
Carr, 659 S.W.2d 361, 363 (Tenn. 1983) (“Common law
certiorari is available where the court reviews an
administrative decision in which that agency is acting in a
judicial or quasi-judicial capacity.”). . . .

A reviewing court is not permitted to “(1) inquire into the
intrinsic correctness of the lower tribunal’s decision, (2)
reweigh the evidence, or (3) substitute [its] judgment for that
of the lower tribunal” when considering a petition for a
common law writ of certiorari. Keen, 2008 WL 539059 at *2
(citations omitted); see also Heyne v. Metro. Nashville Bd. of
Pub. Educ., 380 S.W.3d 715, 729 (Tenn. 2012); Willis, 113
S.W.3d at 712. Rather, the scope of review is limited to
determining “whether the disciplinary board exceeded its
jurisdiction or acted illegally, fraudulently, or arbitrarily.”
Willis, 113 S.W.3d at 712 (citing Turner v. Tenn. Bd. of
Paroles, 993 S.W.2d 78, 80 (Tenn. Ct. App. 1999)); South v.
Tenn. Bd. of Paroles, 946 S.W.2d 310, 311 (Tenn. Ct. App.
1996)). This involves a question of law, not of fact. Harding
Acad. v. Metro. Gov't of Nashville & Davidson Cnty., No.
M2004–02118–COA–R3–CV, 2006 WL 627193, at *4
(Tenn. Ct. App. Sept. 25, 2006). “ ‘The scope of review by
the appellate courts is no broader or more comprehensive than
that of the trial court with respect to evidence presented
before the Board.’ ” Id. (quoting Watts v. Civ. Serv. Bd. for
Columbia, 606 S.W.2d 274, 277 (Tenn. 1980)).

A common law writ of certiorari can be used to correct “(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
                               3
             palpable abuses of discretion.” Willis, 113 S.W.3d at 712 . . .
             In other words, a trial court’s review is focused on the manner
             in which the lower tribunal’s decision was reached rather than
             its intrinsic correctness. Garrard v. Tenn. Dep’t of Corr.,
             No. M2013–01525–COA–R3–CV, 2014 WL 1887298, at *4
             (Tenn. Ct. App. May 8, 2014) (citing Powell v. Parole
             Eligibility Rev. Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App.
             1994)); Keen, 2008 WL 539059, at *2 (citing Hall v.
             McLesky, 83 S.W.3d 752, 757 (Tenn. Ct. App. 2001)). If the
             tribunal reaches its decision in a manner that is either
             unlawful or unconstitutional, the decision is subject to judicial
             review. Powell, 879 S.W.2d at 873.

Snow v. Turney Ctr. Disciplinary Bd., No. M2016-01148-COA-R3-CV, 2016 WL
7409846, at *4-5 (Tenn. Ct. App., filed Dec. 22, 2016).

                                           IV.

       We first address Howard’s due process argument. In Willis, the Tennessee
Supreme Court made the following pertinent statements regarding the due process
interests of an inmate facing disciplinary proceedings:

             The United States Supreme Court has addressed, on several
             occasions, the issue of when a prisoner is deemed to have
             been deprived of a liberty interest. In Sandin [v. Conner],
             the Court held that a liberty interest is not created unless the
             disciplinary restraints being imposed on a prisoner are
             atypical in comparison to the “ordinary incidents of prison
             life.” Sandin, 515 U.S. at 483–84, 115 S.Ct. 2293 [1995]. In
             that case, the Court held that thirty days of punitive
             segregation was not a dramatic departure from the basic
             conditions of the prisoner’s indeterminate sentence, and
             therefore, the prisoner was not entitled to due process
             protection. Sandin, 515 U.S. at 486, 115 S.Ct. 2293.

             Thus, pursuant to Sandin, we find that Tharpe was not
             deprived of a liberty interest when he was punished with
             punitive and administrative segregation.

Willis, 113 S.W.3d at 711. The Willis Court further held that “State prisoners in
Tennessee have a property interest in the funds in their prison trust fund accounts,” id.,
                                            4
but found that “the de minimus nature” of the five-dollar fine imposed in that case
“makes it immune from procedural due process requirements.” Id. at 712.

        On numerous occasions, this Court has followed the principles set forth in Willis
and Sandin to hold that disciplinary restraints such as those imposed on Howard in this
case do not implicate a liberty interest because they are not “atypical in comparison to the
‘ordinary incidents of prison life.’ ” Willis, 113 S.W.3d at 711; see, e.g., Walton v. Tenn.
Dep’t of Corr., No. W2015-01336-COA-R3-CV, 2016 WL 3078838, at *7 (Tenn. Ct.
App., filed May 23, 2016); Bonner v. Cagle, No. W2015-01609-COA-R3-CV, 2016 WL
97648, at *6 (Tenn. Ct. App., filed Jan. 7, 2016); Himes v. Tenn. Dep’t of Corr., No.
M2011-02546-COA-R3-CV, 2012 WL 7170480, at *4 (Tenn. Ct. App., filed Dec. 6,
2012). In Bonner, we held that the imposition of ten days punitive segregation, three
months visitation cancellation, a nine-month package restriction, and a four-dollar fine
were “not sufficient punishments to constitute ‘a dramatic departure from the basic
conditions’ of . . . Bonner’s sentence.” 2016 WL 97648, at *6. The punishment in
Bonner is very similar, albeit slightly harsher, than the discipline imposed on Howard in
the present case. Under the above-cited authorities, we hold that the disciplinary
restraints imposed here do not implicate a liberty interest protected by due process.

                                            V.

        Independent of his due process claims, Howard asserts that TDOC failed to follow
its Uniform Disciplinary Procedures. Willis, 113 S.W.3d at 713; Patterson v. Tenn.
Dep’t of Corr., No. W2009-01733-COA-R3-CV, 2010 WL 1565535, at *2 (Tenn. Ct.
App., filed Apr. 10, 2010) (“[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.”).
As this Court stated in Bonner,


              The Uniform Disciplinary Procedures 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); Meeks v. Tenn. Dep’t of Corr., No. M2007–
              01116–COA–R3–CV, 2008 WL 2078054 at *3 (Tenn. Ct.
              App. May 15, 2008). Minor deviations from the procedures
              will not warrant dismissal of the disciplinary action unless the
              prisoner demonstrates “substantial prejudice as a result and
              the error would have affected the disposition of the case.”
              TDOC Policy No. 502.01(V); Meeks, at *3. “To trigger
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             judicial relief, a departure from the Uniform Disciplinary
             Procedures must effectively deny the prisoner a fair hearing.”
             Jeffries v. Tenn. Dep’t of Corr., 108 S.W.3d 862, 873 (Tenn.
             Ct. App. 2002). Thus, an 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. Irwin v. Tenn. Dep’t
             of Corr., 244 S.W.3d 832, 835 (Tenn. Ct. App. 2007).

2016 WL 97648, at *7.

                                             A.

      Howard’s first claim is that the disciplinary hearing officer who presided over his
case was not authorized by the Uniform Procedures. We disagree. The procedures
provide as follows regarding who may hear and decide disciplinary proceedings:

             A. The Disciplinary Board 1. Each Warden shall appoint a
             minimum of six institutional employees who shall serve as
             members of the disciplinary board to hear all Class A
             disciplinary offenses and Class B offenses for which
             accumulated sentence credits may be taken, i.e., where good
             conduct credits are applied to an inmate’s sentence.

                                  *      *        *

             B. Disciplinary Hearing Officer (Class B and C) 1. The
             disciplinary hearing officer shall be designated to hear Class
             C disciplinary offenses and those Class B Disciplinary
             offenses for which no accumulated sentence credits may be
             taken.

TDOC Policy No. 502.01(VI) (underlining in original). A “disciplinary hearing officer”
is defined as “[a]n employee appointed by the Warden to serve as the chairperson of the
disciplinary board and to hear Class B and C disciplinary offenses.” Id. No.
502.01(IV)(D). The procedures further state that “[a]t least one alternate DHO shall be
appointed by the Warden.” Id.

       Howard’s charge of defiance is a Class B offense. His punishment did not include
a loss of good conduct credits, so a disciplinary hearing officer was the proper person to
                                             6
preside at the hearing. The State asserts that Cpl. McCauley was duly appointed by the
warden as an alternate disciplinary hearing officer. Howard disputes this, arguing that he
was not presented with any proof establishing her appointment. We find nothing in the
Uniform Disciplinary Procedures that provides a right to an inmate to make such a
demand of TDOC, nor that requires TDOC to provide such information. The trial court
specifically found that “Corporal McCauley was appointed as an alternate disciplinary
hearing officer.” The evidence does not preponderate against this conclusion.

                                             B.

        Secondly, Howard asserts that he was not notified of the charge against him a full
24 hours before his hearing. The procedures provide that “[a] disciplinary hearing shall
not be held in less than 24 hours after the inmate has been charged with a disciplinary
[offense] unless the inmate has requested a prompt disposition and waives his/her right to
the 24-hour notice in writing.” TDOC Policy No. 502.01(VI)(A)(6)(c). The State agrees
that only 21.5 hours elapsed between the notice and the hearing, but argues that this is a
minor deviation that did not result in substantial prejudice to Howard, nor did it deny him
a fair hearing under the circumstances.

       In Willis, the Supreme Court addressed an inmate’s similar claim of inadequate
notice and stated:

              It is unclear from the petition to what extent, if any, the
              petitioners received notice of the charges against them. . . . If
              the petitioners received no notice of the charges against them,
              this would be patently prejudicial; if they did receive notice,
              but that notice was somehow defective, its prejudicial nature
              would depend on the particular shortcomings of the
              challenged notice.

113 S.W.3d at 713. In the present case, Howard has not pointed to anything in the record
that indicates he was substantially prejudiced by the denial of two and a half more hours
to prepare for his hearing. He did not object to insufficient notice before the hearing
officer, nor in his appeals to the warden and commissioner.

      As we have recently observed, the Uniform Procedural Procedures accord an
inmate the following rights at his hearing:

              (1) The right to decline to testify. It shall be the burden of the
              reporting employee to prove guilt by a preponderance of the
              evidence.
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              (2) To have the evidence against him/her presented first. 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.

              (3) To cross-examine any witness (except a confidential
              source) who testified against him/her and to review all
              adverse documentary evidence (except confidential
              information).

              (4) To have the reporting official to the alleged infraction
              present and testifying at the hearing. . . . Even if such an
              appearance is waived by the inmate, the employee may
              appear and testify at the hearing.

              (5) The right to testify in his/her own behalf after all evidence
              has been presented.

              (6) 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.

Hanley v. Turney Ctr. Disciplinary Bd., No. M2016-01223-COA-R3-CV, 2016 WL
6995481, at *6 (Tenn. Ct. App., filed Nov. 30, 2016), quoting TDOC Policy No.
502.01(VI)(L)(4)(c).

       In the present case, Howard was allowed to testify on his own behalf, and he was
present during the testimony of the reporting officer. There is no transcript of the hearing
in the record. In order to call witnesses, an inmate is required to fill out and submit an
Inmate Witness Request on a form CR-3511. The summary prepared by the hearing
officer states that no CR-3511 form was submitted. Furthermore, TDOC Policy No.
502.01(VI)(J)(1) provides an inmate with the right to request a continuance. Howard did
not make such a request. In short, there was an erroneous deviation from the Uniform
Disciplinary Procedures when Howard was allowed only 21.5 hours following the notice
of the charge against him, instead of the mandated 24 hours. Under the particular
circumstances of the present case, however, the deviation was relatively minor, and the
error did not cause substantial prejudice to Howard, nor did it deny him a fair hearing.
The trial court did not err in denying Howard relief on this ground.



                                             8
                                           C.

       Finally, Howard argues that the confidential information provided to the hearing
officer was not presented in accordance with the Uniform Disciplinary Procedures. As
can be seen from Policy No. 502.01(VI)(L)(4)(c)(3) quoted above, that section creates an
exception to an inmate’s rights to cross-examine a witness and to review adverse
documentary evidence when there is confidential information involved. In this case, the
evidence supporting the charge of defiance was deemed to be confidential. The Uniform
Disciplinary Procedures require the following procedures in such a case:

             When the disciplinary hearing officer/chairperson determines
             that he/she should receive testimony from a confidential
             source whose identity cannot be disclosed due to either a fear
             of reprisal, or a breach of security information, or determines
             that he/she should receive evidence of a confidential/security
             sensitive nature, it shall be the responsibility of the
             disciplinary hearing officer to independently access and
             verify the reliability of the informant’s testimony and/or the
             confidential security sensitive evidence.

             Where the reliability of the confidential informant and/or the
             evidence of security sensitive nature has not been
             independently verified, such testimony or evidence shall not
             be considered by the disciplinary board/hearing officer in the
             disposition of the disciplinary charge(s).

             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/chairperson’s finding that the informant and/or
             security sensitive evidence was reliable. . . . This form shall
             be considered confidential and kept as a non-public access
             record in an area designated by the Warden.

TDOC Policy No. 502.01(VI)(L)(4)(e-g).

       The record before us contains the confidential information, and an affidavit of
reporting officer Dustin Mackin, in which he explains why the information is
                                           9
confidential, attests that the copies provided are true and accurate, and confirms that he
provided a Form CR-3510 as required. The properly completed CR-3510 form is also in
the record. However, on the disciplinary hearing summary report, under “witnesses
against offender,” there are three “yes/no” boxes to be checked, indicating whether a
written statement was submitted, a Form CR-3510 completed, and a Form CR-3510 was
“received by disciplinary board.” The hearing officer checked “no” on those three boxes.
This is obviously a clerical error. Notwithstanding this error, Howard argues that he was
prejudiced by it.

       It is abundantly clear that the hearing officer, through accident or oversight,
mistakenly checked the wrong three boxes on the form. This conclusion is supported by
several things in the record. First, in the hearing summary report, under the heading
“description of physical evidence introduced,” the hearing officer wrote “confidential
information” and indicated that the internal affairs report was available. Under “findings
of fact and specific evidence relied upon to support those findings,” the officer wrote
“due to report and confidential information provided by IA Dustin Mackin.” Second, as
noted, the record includes Mackin’s affidavit, which attests that he provided the required
form. Third, the CR-3510 form itself bears the signature of the hearing officer, dated the
day of the hearing, wherein the hearing officer affirmed that

             the reliability of the informant was verified in the following
             manner: [s]worn statement before the board by the
             investigating officer, Dustin Mackin, that he believes the
             confidential informant(s) information to be reliable because it
             has been independently corroborated on specific material
             points.

It thus clearly appears that the protocol requirements of TDOC Policy No.
502.01(VI)(L)(4)(e-g) regarding confidential information have been fully complied with.
The clerical error did not prejudice Howard in any way, and does not provide him an
avenue for relief.

                                           VI.

       The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, Eric Bernard Howard. The case is remanded for collection of costs assessed
below.


                                         _______________________________
                                         CHARLES D. SUSANO, JR., JUDGE
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