                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                             Assigned on Briefs March 14, 2001

                       DON WILLIAMS v. DONAL CAMPBELL

                     Appeal from the Chancery Court for Davidson County
                       No. 00-755-III   Ellen Hobbs Lyle, Chancellor



                      No. M2000-01821-COA-R3-CV - Filed June 21, 2001


A prison disciplinary board extended the release eligibility date of an inmate, after finding him guilty
of assaulting a guard. He filed a petition for writ of certiorari which challenged the method used by
the Department of Correction to calculate his new release eligibility date. The trial court dismissed
the petition. We affirm.

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

BEN H. CANTRELL , P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and WILLIAM B. CAIN , JJ., joined.

Don Williams, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dawn
Jordan, Assistant Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                                   I.

       Don Williams came into the custody of the Department of Correction on May 12, 1992, when
he was convicted of voluntary manslaughter. Mr. Williams received a sentence of ten years. On July
31, 1997, he was convicted of another felony, and he received a three year sentence to run
consecutively to the ten year sentence.

        On December 20, 1998, Correctional Officer David Janow strip searched Mr. Williams after
he returned from the visiting gallery. Mr. Williams was holding a bag of cocaine in his mouth, and
when Officer Janow asked him to open his mouth, Mr. Williams spit the bag into the commode, and
attempted to flush it away. The officer tried to prevent this, and was injured in the ensuing struggle.
        On December 22, 1998, a three member panel of the prison’s disciplinary board conducted
a hearing on the incident. The Board found Mr. Williams guilty of an assault on a staff member that
resulted in serious injury, and extended his release eligibility date (RED) by two years, one month,
and five days. The Policies and Procedures of the Department of Correction, #502.02(IV)(E),
authorize the Disciplinary Board to extend a prisoner’s RED by up to 30% of the total length of his
sentence if he is found guilty of a disciplinary offense resulting in physical injury to any person. It
is unclear how the Board arrived at the exact extension it did.

        Mr. Williams appealed the Disciplinary Board’s action to the warden. He claimed that the
strip search was not done in conformity with the procedures set out in the Policy and Procedures
Manual, and that he was not trying to injure the officer, but just to retrieve the cocaine. The warden
affirmed the conviction on December 31, 1998. Mr. Williams subsequently filed a petition for
declaratory order with the Department of Correction, which was denied in a letter dated February 8,
2000.

        On March 9, 2000, Mr. Williams filed a “Petition for a Writ of Common Law Certiorari” in
the Chancery Court of Davidson County. In paragraphs three and four of his petition, he recounted
the filing and the denial of his petition for declaratory order. Mr. Williams claimed that he
completed his ten year sentence in December of 1998, and was serving his three year sentence at the
time of his disciplinary conviction, that the disciplinary board used part of the expired ten year
sentence to calculate the extension of his RED, and that elementary math would preclude a result of
2 years, 1 month and five days when calculating 30% of a three year sentence.

        On April 27, 2000, the Department filed a “Motion to Dismiss or for Summary Judgment,”
accompanied by a certified copy of Mr. Williams’ disciplinary records, and the affidavit of Faye
Claud, Manager of Sentence Information Services for the Tennessee Department of Correction. The
affidavit states that “[t]he RED extension was modified, effective April 13, 2000, per approval of
Assistant Commissioner Jim Rose, from 2 years, 1 month and 5 days, to 30% of the original
maximum sentence.” It is not clear from the affidavit whether the “original maximum sentence”
refers to Mr. Williams’ original sentence of ten years, or to a maximum sentence of thirteen years,
resulting from the addition of the ten year sentence and the consecutive three year sentence. But as
we discuss below, the Disciplinary Board’s action has become moot.

       Mr. Williams filed an “Answer to Motion to Dismiss,” to which the Department replied,
submitting another affidavit by Faye Claud, which contained updated information on Mr. Williams’
offenses and sentences:

               3. The sentence structure is sixteen years - based on a string of consecutive
        sentences, calculated as follows:

               Hamilton County case #188654, imposed May 12, 1992 - sentence 10 years.
               Hamilton County case # 215393, imposed July 31, 1997 - sentence 3 years,
        consecutive to prior sentence, beginning February 23, 1999 the expiration of case
        #188654.

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              Bledsoe County case #571999, imposed January 26, 2000 - sentence 3 years,
       consecutive to case #215393. This latest crime was committed December 20, 1998,
       while assigned to minimum trusty security status, therefore, the parole dates for cases
       188654 and 215393 were lost per TCA 40-28-123(b)(1).

               4. The current release eligibility date (RED) is January 18, 2003; and, the
       current expiration date is February 23, 2005. These dates may reduce each month
       that sentence credits are earned and retained.

        On June 29, 2000, the trial court filed a “Memorandum and Order” dismissing Mr. Williams’
petition, on a determination that he was not entitled to the relief of either a writ of certiorari or a
declaratory judgment. This appeal followed.

                                                  II.

        The Uniform Administrative Procedures Act (UAPA), Tenn. Code. Ann. § 4-5-101 et seq.,
sets out contested case procedures for challenging certain decisions of state government
administrative bodies. These procedures include declaratory proceedings, “in which the rights,
duties or privileges of a party are required by any statute or constitutional provision to be determined
by an agency after an opportunity for a hearing . . . .” Tenn. Code. Ann. § 4-5-102(3).

        Declaratory proceedings would thus appear to be an appropriate way to deal with this case,
if it were not for the fact that Tenn. Code. Ann. § 4-5-106 specifically excludes “disciplinary
proceedings for inmates under the supervision of the Department of Correction” from the contested
case provisions of the UAPA.

        Our courts have been slow on occasion to recognize the inapplicability of the UAPA to
prison disciplinary proceedings. See, for example, Smith v. Donal Campbell, 995 S.W.2d 116 (Tenn.
Ct. App. 1999). However, several of our cases have specifically stated that a petition for writ of
certiorari is the only proper vehicle for appealing the actions of a prison disciplinary board. Rhoden
v. State Dept. of Correction, 984 S.W.2d 955 (Tenn. Ct. App. 1998); Bishop v. Conley, 894 S.W.2d
294 (Tenn. Crim. App. 1994).

        The writ of certiorari is limited in scope; it does not examine the intrinsic correctness of the
Board’s decision, but only covers an inquiry into whether the Board has exceeded its jurisdiction or
has acted illegally, fraudulently or arbitrarily. See Powell v. Parole Eligibility Review Board, 870
S.W.2d 871 (Tenn. Ct. App.1994). The writ is also governed by statutory time constraints. A
petition for the writ must be filed within sixty days from the entry or order complained of. Tenn.
Code. Ann. § 27-9-102. Failure to file the petition within the sixty day period deprives the court of
jurisdiction over the matter. Fairhaven Corporation v. Tennessee Health Facilities Commission,
566 S.W.2d 885 (Tenn. Ct. App. 1976).

       The Department of Correction has instituted procedures for internal appeal of the decisions
of the Disciplinary Board to the warden, and in certain cases, to the commissioner. See

                                                  -3-
#502.01(VI)(F), Policies and Procedures of the Department of Correction. The record indicates that
Mr. Williams followed those procedures by filing an appeal with the warden, who affirmed the
decision of the Board. If we take the warden’s affirmance of December 31, 1998 as the order being
appealed from, then the petition of March 9, 2000 has to be considered untimely.

        If, however, we deem his petition for declaratory order to be the final step in the grievance
process, as Mr. Williams urges us to do, then the denial of that petition on February 8, 2000 would
be the order appealed from, and the petition for writ of certiorari would not be untimely. Mr.
Williams argues that we should grant him this indulgence because he just followed procedures
recommended by others, and because he “is a layman totally ignorant of the law and proper legal
form.” Our courts generally give pro se plaintiffs greater latitude than represented plaintiffs when
dealing with errors of legal form. See, for example, Jackson v. Aldridge 6 S.W.3d 501 (Tenn. Ct.
App. 1999). This does not mean that the courts can assume jurisdiction over a case where that
jurisdiction has been lost as a matter of law.

         In this case, however, even if we found that Mr. Williams filed his petition within the sixty
day time limit, we believe he still would not be entitled to the relief he seeks. Ms. Claud’s affidavits
are not refuted by Mr. Williams, and they demonstrate to us that all the questions related to his parole
eligibility are either without merit or have become moot.

        For example, the modification of the RED extension reported in Ms. Claud’s first affidavit
supercedes the action of the Disciplinary Board. Therefore a review of the Board’s action would
avail nothing. In addition, because he committed a crime while serving the three year sentence, his
RED has necessarily changed. See Tenn. Code Ann. § 40-28-123(b)(1). Any argument that the
Disciplinary Board miscalculated his RED based on the circumstances that existed in 1998 is an
argument about a moot point.

                                                  III.

       The order of the trial court is affirmed. Remand this cause to the Chancery Court of
Davidson County for further proceedings consistent with this opinion. Tax the costs on appeal to
the appellant, Don Williams.




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




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