                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                        Submitted on Briefs, February 23, 2010

   STANLEY FINNEY, v. TENNESSEE DEPT. OF CORRECTION, et al.

                 Appeal from the Chancery Court for Johnson County
                  No. 6227    Hon. G. Richard Johnson, Chancellor


                 No. E2009-01111-COA-R3-CV - FILED MAY 4, 2010




Petitioner, a prisoner, filed a Common Law Writ of Certiorari in the Chancery Court, alleging
that he had been illegally disciplined while incarcerated. Respondents agreed that the writ
should be granted and thereafter they filed a Motion to Dismiss the action. The Trial Judge
dismissed the writ and petitioner has appealed. On appeal, petitioner argues that the
allegations set forth in his petition must be taken as true under the Rules of Civil Procedure.
The factual allegations pled by petitioner, when taken as true, state a cause of action. We
therefore vacate the Order of Dismissal and remand for further proceedings.


 Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Vacated.


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., J., and. D. M ICHAEL S WINEY, J., joined.


Stanley Finney, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter,
Michael E. Moore, Solicitor General, and
Kellena Baker, Assistant Attorney General, Nashville, Tennessee, for the appellees,
Tennessee Department of Correction and George Little.


                                         OPINION

       Petitioner, Stanley Finney, pro se, filed a Petition for a Common Law Writ of
Certiorari, alleging that he received an arbitrary and illegal disciplinary conviction while
housed at the Brushy Mountain State Penitentiary. He alleged he was accused of putting up
a gang sign (i.e. three fingers in the air) by a prison guard and was taken before the
disciplinary board for “security threat group activity”. Petitioner alleged he told the board
that he was not putting up a gang sign, but actually made the “peace” symbol to another
inmate, and that neither of them were gang members.

       Petitioner alleged that his inmate advisor submitted a witness request form on
petitioner’s behalf on the day before the hearing as TDOC policy requires, but the hearing
officer gave it back to the advisor, stating, “we’ll see what the Lieutenant has to say
tomorrow.” He further alleged that the following day at the hearing, he asked for his witness
to be allowed to testify before the board in his defense, but the board refused, stating they
could read his statement. The board convicted petitioner of the infraction, and he appealed
to the warden, who denied his appeal. He then appealed to the commissioner, who denied
his appeal.

       Petitioner asserts that he was given a $5 fine, and also lost 16 sentence reduction
credits.

       Petitioner attached the disciplinary report, which states that when he was entering the
chow hall, he was observed flashing gang signs by Lt. Caldwell, who confronted petitioner.
Lt. Caldwell reported that petitioner said he would not do it anymore, which Lt. Caldwell
deemed an admission, and he was charged with participation in security threat group activity.
He also attached his appeal sheet with his denial of the charge, and the witness request sheet,
wherein he lists Perley Winkler as a witness, and stated that Winkler would testify that
petitioner was “throwing me a peace sign when he was coming through the chow line”.
Petitioner also filed the requisite inmate affidavit.

       Respondents filed a Notice stating that they did not oppose the granting of a writ of
certiorari, and the writ was granted.

       Respondents filed a copy of the administrative record of the disciplinary proceedings,
and then filed a Motion for Judgment on the Record, asserting that the disciplinary board did
not act illegally, fraudulently, or arbitrarily, that the evidence of the reporting official was
sufficient to support the violation, and there was nothing in the record to show that petitioner
actually filed the witness request form before or at the hearing.

        Petitioner filed a response, but the Trial Court granted respondents’ Motion, finding
that the board relied on sufficient evidence, and the board did not deviate from TDOC policy
in failing to call petitioner’s witness, because no witness request form appeared in the record.

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On appeal, petitioner raises the issue that the Trial Court erred in granting respondents'
Motion for Judgment on the record.

        The motion filed by respondents is addressed in Tenn. R. Civ. P. 12.03, which states
that a motion for judgment on the pleadings may be filed “after the pleadings are closed but
within such time as not to delay the trial.” Tenn. R. Civ. P. 12.03. As this Court has
recognized:

       When a motion for judgment on the pleadings is made by the defendant, it is in effect
       a motion to dismiss for failure to state a claim upon which relief can be granted. Such
       a motion admits the truth of all relevant and material averments in the complaint but
       asserts that such facts cannot constitute a cause of action. In considering whether to
       dismiss a complaint for failure to state a claim upon which relief can be granted, the
       court must accept as true “all well-pleaded facts and all reasonable inferences drawn
       therefrom” alleged by the party opposing the motion. Making such a determination
       is a question of law. Our review of a trial court's determinations on issues of law is
       de novo, with no presumption of correctness.

Timmins v. Lindsey, 2009 WL 3486633 (Tenn. Ct. App. October 28, 2009)(citations omitted).

       In this case, petitioner alleged in his petition that his inmate advisor gave the witness
request form (requesting that Perley Winkler be allowed to testify at the hearing) to the
disciplinary board chairman, Sgt. Larry Ward, on the day before the hearing. Petitioner
alleged that Ward read the expected testimony of Winkler contained on the form and then
gave it back to the inmate advisor, stating “we’ll see what the Lieutenant has to say
tomorrow.” Petitioner further alleged that the next day at the hearing, he requested that his
witness be allowed to testify, and that Ward refused, stating that they could read the expected
testimony from the form. Petitioner alleged that the board members read the form and
handed it back to him, never even noting that it was submitted. He alleged that this
prejudiced him in his appeals, because his evidence was not able to be considered.

        As both parties concede, the scope of review under a common law writ of certiorari
is very narrow, and only allows an inquiry into whether the board exceeded its jurisdiction
or acted illegally, fraudulently, or arbitrarily. See Powell v. Parole Eligibility Rev. Bd., 879
S.W.2d 871 (Tenn. Ct. App. 1994). “[I]t is not the correctness of the decision that is subject
to judicial review, but the manner in which the decision is reached. If the agency or board
has reached its decision in a lawful manner, then the decision would not be subject to judicial
review.” Id. at 873. Both parties also concede that deviations from TDOC policy “will
warrant dismissal of the disciplinary offense if the prisoner demonstrates ‘some prejudice as
a result and the error would have affected the disposition of the case.’” Willis v. Tenn. Dept.

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of Corr., 113 S.W.3d 706, 713 (Tenn. 2003). A prisoner seeking judicial review of a prison
disciplinary proceeding “states a claim for relief under common-law writ of certiorari if the
prisoner's complaint alleges facts demonstrating that the disciplinary board failed to follow
the Uniform Disciplinary Procedures and this failure substantially prejudiced the petitioner.”
Id. The Willis Court went on to state:

       The Uniform Disciplinary Procedures provide the principal means of ensuring that
       disciplinary proceedings are fair, reliable, and impartial. The integrity of disciplinary
       systems is important to the stability of a corrections program. If the Tennessee
       Department of Correction were to violate its own policies to such a degree that it
       administered punishment without a reliable determination of guilt, such a violation
       would be without legal authority and an abuse of discretion. Accordingly, we hold
       that the petition states a cause of action with respect to its allegations that the
       disciplinary board violated its own rules and policies and that the petitioner was
       substantially prejudiced thereby.

Id. at 714.

        TDOC policy states that inmates have the right to present the testimony of relevant
witnesses, “unless allowing the witness to appear would pose a threat to institutional safety
or order.” TDOC policy 502.01. This policy goes on to state that if an inmate wishes to have
a witness testify, he must complete a witness request form and submit it to the hearing officer
at least 24 hours prior to the hearing. The hearing officer must then indicate on the form
whether the request is approved or denied, and if denied, the specific reasons for said denial
must be listed on the form. Id. TDOC policy states that even if an inmate fails to file the
proper request form prior to the hearing, the hearing officer can still allow the witness to
testify. Id. The policy also states that an inmate may submit a written witness statement
when the personal appearance of a witness has been denied. Id.

        Here, the petitioner alleged that he did all of these things, i.e. he submitted a witness
request form the day before the hearing, and the hearing officer looked at it and then gave
it back without noting whether it was approved or denied, nor stating the reasons for a denial.
Petitioner alleged that he again requested that his witness be allowed to testify at the hearing,
but his request was denied. Petitioner further alleged that his witness’ expected testimony
was not made a part of the record even though he submitted it, and that there was nothing put
in the record to show that he actually submitted it. Respondents argue, and the trial court
found, that the administrative record does not show that petitioner ever submitted the witness
request form, but this does not disprove petitioner’s version of the events, as he alleged that
the form was submitted but not properly accepted by the board nor put into the record.



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        Since this case was based on a motion for judgment on the pleadings, we must take
as true “all well-pleaded facts and all reasonable inferences drawn therefrom” alleged by the
party opposing the motion, i.e. petitioner. See Timmins. We must, therefore, accept as true
that petitioner submitted the form properly, but that the hearing officer improperly refused
to accept the form, and also did not properly note whether the request was accepted or
denied, nor any reasons for denial. We must also accept as true that plaintiff made his
request again at the hearing but was denied, still without the proper notations being made on
the form, and that the form was never properly put into the record as it was required to have
been.

        Taking the allegations as true, as we must, it is clear that TDOC policy was not
followed in this case, and that the deviation therefrom deprived petitioner of his ability to
present a witness to testify in his defense, which could have affected the outcome of his case.
Petitioner was also denied the ability to preserve the witness’ testimony in the record by the
filing of a written statement, which could also have affected the outcome of his
administrative appeals. As such, we conclude that petitioner was denied a fair hearing and
that his rights were violated.

       We hold that taking the petitioner's allegations as true, TDOC policy was violated and
the Trial Court erred in granting judgment for the respondents and failed to properly evaluate
petitioner’s allegations in the context of a Rule 12 motion.

      Accordingly, we vacate the Judgment of the Trial Court and remand for further
proceedings consistent with this Opinion. The cost of the appeal is assessed to respondents.




                                                    _________________________________
                                                    HERSCHEL PICKENS FRANKS, P.J.




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