             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                          FILED
                                                            March 29, 1999
GREGORY PIGG,                          )
                                       )                  Cecil Crowson, Jr.
       Petitioner/Appellant,           )                 Appellate Court Clerk
                                       )    Appeal No.
                                       )    01-A-01-9807-CH-00384
VS.                                    )
                                       )    Davidson Chancery
                                       )    No. 97-2698-III
SCO. DANNY R. CASTEEL, et al.,         )
                                       )
       Defendants/Appellees.           )


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

            THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR




GREGORY PIGG, #228456
South Central Correctional Facility
P. O. Box 279
Clifton, Tennessee 38425-0279
       Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General & Reporter

PAMELA S. LORCH
Assistant Attorney General
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
       Attorney for Defendants/Appellees




                          REVERSED AND REMANDED




                                       BEN H. CANTRELL,
                                       PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
CAIN, J.
                                  OPINION


              A prisoner in a correctional institution operated by a private corporation

filed a petition for writ of certiorari. The petition challenged a disciplinary conviction

imposed upon him by a panel of correctional officers who were employees of the

corporation. The trial court dismissed the petition for failure to state a cause of action.

We reverse, and remand to the trial court for further proceedings.



                             I. Disciplinary Proceedings



              Since this case was dismissed for failure to state a claim, we take the

facts from the petition and the amended petition. Gregory Pigg is an inmate in the

South Central Correctional Facility, a prison operated for the Tennessee Department

of Correction (TDOC) by Corrections Corporation of America (CCA).                Mr. Pigg

apparently operates an embroidery machine in the prison workshop. On April 1, 1997,

Senior Correctional Officer Danny Casteel searched Mr. Pigg’s cell, and found seven

pieces of upholstery material. Officer Casteel confiscated the material and issued a

disciplinary report charging Mr. Pigg with larceny.



              On or about April 6, Mr. Pigg was advised that the charge of larceny had

been dismissed, and the fabric was returned to him. On April 17, Officer Casteel

again searched Mr. Pigg’s cell, and found and confiscated the same seven pieces of

fabric. On April 29, the prisoner was issued a disciplinary report for possession of

contraband.



              On May 6, 1997, a disciplinary panel composed of three CCA

employees conducted a hearing on the charge. The panel found Mr. Pigg to be guilty

of possessing contraband, and sentenced him to five days punitive segregation,


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suspended for sixty days. In addition, the panel imposed a two month package

restriction on him and gave him a class C disciplinary infraction. According to Tenn.

Code Ann. § 41-24-110(5), a private contractor operating a state prison does not have

the power to place an inmate under more restrictive custody or otherwise discipline

the inmate.



              Mr. Pigg appealed the decision of the disciplinary panel to Jim Rose, the

Assistant Commissioner of the Department of Correction. On May 20, 1997, Mr. Rose

affirmed the conviction because “[t]he reporting officer’s statement and evidence

support the finding of guilty.” Mr. Pigg then appealed to Commissioner of Corrections

Donal Campbell. He found “no due process violations,” and affirmed the decision on

June 9, 1997.



              On August 13, 1997, Mr. Pigg filed a petition for writ of certiorari in the

Chancery Court of Davidson County. He named as respondents Officer Casteel, the

three members of the disciplinary panel, two other CCA employees, Commissioner

Rose and Commissioner Campbell. The petitioner claimed that the disciplinary

proceedings against him were illegal, because the state is prohibited by statute from

delegating prison disciplinary procedures to private contractors. Tenn. Code Ann. §

41-24-110(5). In an amended petition, Mr. Pigg alleged that by returning the material

to him after the first hearing, and then using it as the basis for the charge of

possessing contraband amounted to entrapment, malicious prosecution, double

jeopardy, and violation of his due process rights.



              The Department filed a motion to dismiss the petition for failure to state

a claim upon which relief can be granted. Tenn. R. Civ. P. 12.02(6).



              On March 3, 1998, the trial court issued its memorandum and order.

The court first granted Mr. Pigg’s motion to amend his petition, but dismissed the

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cause of action as to the individual defendants, because the proper party under a writ

of certiorari is the Tennessee Department of Correction. Tenn. Code Ann. § 27-9-101

et seq. The court then rejected Mr. Pigg’s claim that the state had violated Tenn.

Code Ann. § 41-24-110(5) by allowing CCA to impose discipline upon him. The court

noted that two state officials had approved the action, and concluded that under

Mandela v. Campbell, 978 S.W.2d 931 (Tenn. 1998) this was sufficient to negate any

possible violation of Tenn. Code Ann. § 41-24-110(5). This appeal followed.



                                            II.



                A writ of certiorari is an order issued by a superior court to compel an

inferior tribunal to send up its record for review. The scope of review under a petition

for a common-law writ of certiorari is very narrow. The writ will issue only if the record

indicates that the inferior tribunal exceeded its jurisdiction, or that it acted illegally,

fraudulently, or arbitrarily. Yokley v. State, 632 S.W.2d 123 (Tenn. App. 1981). The

facts alleged by the petitioner in this case point to at least one possible irregularity in

the conduct of the disciplinary board that was not denied by the respondent, and

which may, if proven, constitute a sufficient ground for reversal on the basis of excess

of jurisdiction or illegality.



                We begin our discussion with the Private Prison Contracting Act of 1986,

Tenn. Code Ann. § 41-24-101 et seq., and specifically with Tenn. Code Ann. § 41-24-

110, which reads as follows:

                Powers and duties not delegable to contractor. ---
                No contract for correctional services shall authorize, allow or
                imply a delegation of the authority or responsibility of the
                commissioner to a prison contractor for any of the following:
                       (1) Developing and implementing procedures for
                calculating inmate release and parole eligibility dates;
                       (2) Developing and implementing procedures for
                calculating and awarding sentence credits;
                       (3) Approving inmates for furlough and work release;



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                         (4) Approving the type of work inmates may perform,
                 and the wages or sentence credits which may be given to
                 inmates engaging in such work; and
                         (5) Granting, denying or revoking sentence credits;
                 placing an inmate under less restrictive custody or more
                 restrictive custody; or taking any disciplinary actions.



                 The Department of Correction has established Uniform Disciplinary

Procedures to govern discipline in state prisons, which it publishes in a manual for its

employees. The purpose of these procedures is “[t]o provide for fair and impartial

determination and resolution of all disciplinary charges placed against inmates

committed to the Tennessee Department of Correction.” Policy #9502.01(II).



                 To achieve this purpose, the warden of each prison is empowered to

establish a disciplinary board, composed of at least six institutional employees who

receive training in disciplinary procedures. Disciplinary charges against an inmate are

heard by a panel of at least three members of the board. The Commissioner also

appoints an employee of the Department of Correction (referred to in the Uniform

Disciplinary Procedures as a “Commissioner’s Designee”) to act as the approving

authority for disciplinary actions occurring at privately operated TDOC facilities.



                 The role of the designee in disciplinary proceedings includes the

obligation to:

                 “observe all Class A and B disciplinary hearings, and approve
                 or modify all recommendations of the disciplinary board at the
                 time of the hearing. In cases of Class C infractions where
                 punitive segregation is recommended, the commissioner’s
                 designee must approve/modify the recommendation as soon
                 as possible and prior to the inmate’s placement in
                 segregation.”

Policy #9502.01(IV)(I), as quoted in Mandela v. Campbell, 978 S.W.2d 531, 532

(Tenn. 1998).




                                            -5-
                In Mandela v. Campbell, supra, the Supreme Court had to decide

whether the Department’s disciplinary policies could be reconciled with the prohibition

against delegating disciplinary functions to a private contractor. The Court found that

although employees of the contractor reviewed the evidence, entered their findings

and made recommendations, “[t]he final approval of the disciplinary recommendation

rested solely with the TDOC commissioner’s designee.” The Court further observed

that under the procedures, “[t]he board’s recommendation as to punishment was

merely a recommendation, and actual discipline was not imposed until the TDOC

representative reviewed the case and approved the board’s recommendation.” Thus,

the Court concluded that the policy in question did not violate Tenn. Code Ann. § 41-

24-110(5). It is implicit in the Court’s opinion that the function of the commissioner’s

designee is not to serve merely as a rubber stamp for the actions of the disciplinary

board, but to take an active and decisive role in the disciplinary process.



                In the case before us, it appears that the procedure mandated by the

Department and approved by the Supreme Court was not followed. Since a hearing

summary by the disciplinary board (a document which is mandated by the Uniform

Disciplinary Procedures) is not found in the record, we cannot know for certain

whether the commissioner’s designee participated in the decision at issue. However,

in light of the fact that the appellee relies solely upon the denial of Mr. Pigg’s appeal

by the commissioner and the assistant commissioner to avoid the prohibition of the

statute, it is a fair implication that the designee did not review or give approval to the

discipline imposed by CCA’s employees. The function of the writ of certiorari is to

bring up the record so that the court may determine whether the inferior tribunal acted

illegally or arbitrarily.



                We note that there is a section in the disciplinary procedures for a two-

stage appeal, which is separate from the section on the duties of the commissioner’s

designee. Mr. Pigg apparently followed the appeals procedure. However, we reject

                                           -6-
the appellee’s implied argument that the department can shortcut its own disciplinary

procedures and rely instead upon an inmate-initiated appeal to avoid the prohibition

of Tenn. Code Ann. § 41-24-110(5). Such a result would unfairly prejudice prisoners

who, for whatever reason, chose not to initiate an appeal, and it would be inconsistent

with the Supreme Court’s holding in Mandela v. Campbell, supra.



                                           III.



              In light of our decision on the first issue, we pretermit the question of

whether the Department acted arbitrarily when it returned the materials to Mr. Pigg

and then charged him with the possession of contraband. We accordingly find that

the petition and the amended petition do state a cause of action for the issuance of

the writ of certiorari. The order of the trial court is reversed and we remand this cause

to the Chancery Court of Davidson County for the issuance of the writ and for further

proceedings consistent with this opinion. Tax the costs on appeal to the

Commissioner in his official capacity.



                                                  _____________________________
                                                  BEN H. CANTRELL,
                                                  PRESIDING JUDGE, M.S.

CONCUR:


_____________________________
WILLIAM C. KOCH, JR., JUDGE


_____________________________
WILLIAM B. CAIN, JUDGE




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