MICHAEL KINDELL,                         )
                                         )
       Plaintiff/Appellant,              )
                                         )   Wayne County Chancery
                                         )   No. 9689
VS.                                      )
                                         )   Appeal No.
                                         )   01A01-9610-CH-00495
JIM H. ROSE, Assist. Commissioner        )
of the Tennessee Dept. of Corrections,

       Defendants/Appellees.
                                         )
                                         )
                                         )
                                                               FILED
                                                                   February 7, 1997

                   IN THE COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
                        MIDDLE SECTION AT NASHVILLE    Appellate Court Clerk

        APPEAL FROM THE CHANCERY COURT FOR WAYNE COUNTY
                    AT WAYNESBORO, TENNESSEE

                     HONORABLE JIM T. HAMILTON, JUDGE


Michael Kindell #209149
CCA/SCCF
P.O.Box 279
Clifton, TN 38425
ATTORNEY FOR PLAINTIFF/APPELLANT


Abigail Turner                     Frankie K. Stanfill
Asst. Atty. General                Law Office of Tom Anderson
404 James Robertson Parkway        P.O. Box 900
Parkway Towers, Suite 2000         Lexington, TN 38351
Nashville, TN 37243-0488
ATTORNEYS FOR DEFENDANTS/APPELLEES


                         REVERSED AND REMANDED.



                                   HENRY F. TODD
                                   PRESIDING JUDGE, MIDDLE SECTION


CONCUR:

SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL., JUDGE
MICHAEL KINDELL,                               )
                                               )
       Plaintiff/Appellant,                    )
                                               )       Wayne County Chancery
                                               )       No. 9689
VS.                                            )
                                               )       Appeal No.
                                               )       01A01-9610-CH-00495
JIM H. ROSE, Assist. Commissioner              )
of the Tennessee Dept. of Corrections,         )
                                               )
       Defendants/Appellees.                   )



                                        OPINION



       The captioned petitioner, an inmate of an institution operated by a private contractor

for the Tennessee Department of Correction, has appealed from the summary dismissal of his

petition for certiorari for review of disciplinary actions of the defendants.



       The complaint states:

                  Pursuant to Tenn. Code Ann. §§ 27-8-101 & 27-8-
               102, petitioner respectfully petitions the Honorable
               Court for a common law writ of certiorari for judicial
               review of the South Central Correction Facility
               (hereinafter “SCCF”) Disciplinary Board decision, and
               the decision of the Warden and Commissioner in
               affirming the appeal.

               1. Petitioner, Michael Kindell #209149, is an inmate in-
               carcerated at SCCF which is managed and operated by
               a private prison contractor by agreement with the
               Department of Correction and in accordance with
               statutory provisions.

               2. Respondent, Jim Rose, is employed as the Assistant
               Commissioner of Correction, he has been designated by
               the Commissioner to review the Warden’s decision and
       `       review of the SCCF disciplinary board’s decision.

               3. Respondent, Kevin Myers, is employed as the chief
               Executive Officer at SCCF, one of his duties requires
               him to review the decisions of the disciplinary board
               when appealed by inmates.

               4. Respondent, Dale Kilburn, is employed as a cor-
               rectional officer supervisor, one of his duties requires
               him to serve as Chairperson of the Disciplinary Board,

                                               -2-
which hears and determine whether an inmate is
guilty of the disciplinary infraction.

5.   Respondent Sharron Warren, is employed as
an   employee of the Department of Correction, one
of   her duties requires her to serve as the observer
or    monitor at certain disciplinary proceedings.

6. Respondent, Gary Overby, is employed as an
employee of the Department of Correction, one of
his duties requires him to serve as the observer and
monitor at certain disciplinary proceedings.

10. Petitioner avers that on February 28th, he was
summoned before the disciplinary board to answer
to the charges of possession of security threat
group material.

14. Petitioner avers that the Board found him
guilty of the disciplinary charge.

17. Petitioner avers that he appealed the decision
of the disciplinary board to Respondent Myers, who
concurred with their decision.

18. Petitioner avers that he appealed the decision
of the disciplinary board to Respondent Rose who
affirmed the Respondents, Myers and Kilburn
decisions.

21. The actions of Respondent Kilburn in finding
him guilty of the disciplinary infraction violated his
right of due process when the findings of fact and
specific evidence relied upon to support those
findings were insufficient evidence because it
does not meet the burden of proof as described in
TDOC policy 502.05 PCN 95-195 Section DDD.

22. The actions of Respondent warren or overby
(sic) violated his rights of due process when they
took no steps to correct the procedures to prevent
the Respondent Board from punishing the petitioner
from conduct that was the fault of the institution in
allowing him to receive letters that they felt were
written in codes or otherwise subject the safety of
the institution in jeopardy.

23. The actions of Respondents Myers and Rose
violated his rights of due process when they affirmed
the board’s decision in finding him guilty of the
disciplinary charge on insufficient evidence which
did not require the institution to carry its burden of
proof as required by TDC Uniform Disciplinary
Procedures.




                               -3-
      24. The actions of the Respondents Kilburn, Myers,
      Rose, Warren and Overby, were “essentially illegal”
      and arbitrary in the method of not providing him a
      proper disposition of the case in accordance with
      TDOC Uniform Disciplinary Procedures.

      25. The actions of the Respondents Kilburn, the
      Disciplinary Board members and Myers were
      “essentially illegal” and arbitrary in hearing and
      determining the disposition of the charges and
      imposing punishment against petitioner, because
      employees of a private prison contrator has no
      authority to take any disciplinary action against
      prisoners.

        WHEREFORE, PREMISES CONSIDERED,
      Petitioner prays that the Court will:

      27. enter an Order directing the Respondents to file
      all record of the proceedings including but not
      limited to: TDOC Uniform Disciplinary Procedures
      Index No.502.01; TDOC Definitions of Disciplinary
      Offenses Index No. 502.05 and PCN 95-195; the
      Disciplinary Hearing Summary, the Disciplinary
      Report, the tape of the hearing; and any and all
      documents indicate it is a true and accurate record
      of the proceedings.

      28. review the findings and decisions of the SCCF
      Disciplinary Board, Warden and Commissioner, and
      invalidate their decision as being essentially illegal
      and arbitrary.



T.C.A.§§ 27-8-101 and 102 provide:

         27-8-101. Constitutional basis. - The writ of
      Certiorari may be granted whenever authorized by
      law, and also in all cases where an inferior tribunal,
      board, or officer exercising judicial functions has
      exceeded the jurisdiction conferred, or is acting
      illegally, when, in the judgment of the court, there is
      no other plain, speedy, or adequate remedy. This
      section does not apply to actions governed by the
      Tennessee Rules of Appellate Procedure.

         27-8-102. Cases in which writ lies. - Certiorari
      lies:

      (1) On suggestion of diminution;
      (2) Where no appeal is given;
      (3) As a substitute for appeal;
      (4) Instead of audita querela; or
      (5) Instead of writ of error.



                                     -4-
      Defendant’s “Motion for Summary Judgment” states:

             COME NOW the Defendants, Kevin Myers and Dale
             Kilburn (hereinafter referred to as “Defendants”), by
             and through their attorneys, TOM ANDERSON and
             FRANKIE K. STANFILL, and respectfully move this
             Honorable Court to grant this Motion for Summary
             Judgment pursuant to Rule 56.02 of the Tennessee
             Rules of Civil Procedure. The basis for this motion is
             that the disciplinary action of the Defendants did not
             violate Tennessee Code Annotated § 41-24-110.

               These Defendants contemporaneously file herewith
             a Memorandum of Law in Support of this Motion for
             Summary Judgment and the Statement of Undisputed
             Facts.


      T.C.A. § 41, 24-110 provides:

             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;
             (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 motion of defendants was supported by an unsworn statement of facts and an

unsworn memorandum of law which reads as follows:

             Petitioner, Michael Kindell, filed his Petition for Writ
             of Certiorari and named as Defendants, Kevin Myers
             and Dale Kilburn (hereinafter referred to as
             “Defendants”), who are/or were employees of
             Corrections Corporation of America (hereinafter
             referred to as “CCA”). CCA is a private corporation
             under contract with the State of Tennessee to operate
             and manage South Central Correctional Center (here-
             inafter referred to as “SCCC”).

                                            -5-
               PRELIMINARY STATEMENT

   The Petitioner, an inmate incarcerated at SCCC,
alleges that on March 4, 1996, he was taken before the
Disciplinary Board consisting of Defendant Kilburn,
and other Disciplinary Board members who were CCA
employees, with a disciplinary charge of Possession of
Security Threat Group Materials. After hearing the
disciplinary charges against Petitioner, the Disciplinary
Board found Petitioner guilty of this disciplinary
infraction. The Disciplinary Board then recommended
to the Tennessee Department of Correction (herein-
after referred to as “TDOC”) liaison, Gary Overby,
that the Petitioner receive fifteen (15) days of punitive
segregation for Possession of Security Threat Group
Material which is a Class A violation. The TDOC
liaison approved the Disciplinary Board recommenda-
tion.

  After approval by the TDOC Liaison, Plaintiff
appealed the decision        to   TDOC Assistant
Commissioner Jim Rose, who subsequently upheld the
TDOC Liaison’s decision. Plaintiff brings his action in
Chancery Court for Wayne County, Tennessee at
Waynesboro, stating that any action taken by the
Disciplinary Board at SCCC is an illegal action in
violation of Tennessee Code Annotated § 41-24-110.

                          ARGUMENT

  Plaintiff’s Petition for Writ of Certiorari is brought
Pursuant to TCA § 27-8-101, which states:

   Constitutional basis - The writ of certiorari may be
granted whenever authorized by law, and also in all
cases where an inferior tribunal, board, or officer
exercising judicial functions has exceeded the juris-
diction conferred, or is acting illegally, when, in the
judgment of the court, there is no other plain, speedy,
or adequate remedy...

A Writ of Certiorari under this statute is not
appropriate since this Honorable Court has no lawful
authority to review the decision of the Disciplinary
Board at SCCC.

  The Writ of Certiorari is an extraordinary remedy
which is embodied in TCA § 27-8-101 and generally is
to be utilized when a inferior tribunal is acting illegally,
has exceeded its jurisdiction, or where there is no other
plain, speedy, or adequate remedy. Henry v. Board of
Claims, 638 S.W.2d 825 (M.D. Tenn. 1982); Clark v.
Metropolitan Government of Nashville, 827 S.W.2d
312 (M.D. Tenn. 1991). Remedy of Certiorari is not
available as of right, but is granted under unusual or
extraordinary circumstances. Id., at 322. It is instituted

                                -6-
by an application to a court of competent jurisdiction
which may or may not authorize the writ. If there is no
legitimate cause for writ of certiorari, to grant the writ
would be erroneous. Id. At 322.

   When an inmate is charged with a disciplinary
infraction at SCCC, the Disciplinary Board conducts a
hearing to determine the guilt or innocence of the
accused inmate. Upon a finding of guilt, the Disciplinary
Board then makes its recommendation for punishment
to the Commissioner’s designee, who in this case was
the TDOC liaison, Gary Overby.

   After hearing the evidence against Petitioner, the
Disciplinary Board recommended to Mr. Overby that
Petitioner be found guilty. He approved the Disciplinary
Board’s recommendation in accordance with TDOC
policy 9502.01 on March 4, 1996. (See Memorandum
attached as Exhibit “A”) Petitioner then appealed this
decision to Defendant Myers             and Assistant
Commissioner Jim Rose. The Assistant Commissioner
upheld the TDOC Liaison’s, Gary Overby, approval of
the Disciplinary Board’s recommendation on March 20,
1996. (See Disciplinary Report Appeal attached as
Exhibit “B”) Therefore, the disciplinary action taken
against Petitioner was by TDOC and not SCCC. The
disciplinary action and involuntary segregation
sentencing was adjudicated in compliance with TCA
§ 41-24-110.

   Review of a Board’s decision under the common law
Writ of Certiorari is limited to a determination of
whether the board exceeded its jurisdiction or acted
illegally, fraudulently or arbitrarily. Henry v. Board of
Claims, supra at 827. Common Law Writ of Certiorari
cannot be used to review the Board’s judgment as to
the intrinsic correctness on the law or the facts of the
case. Id. At 827. With the disciplinary Board at SCCC
only recommending a finding of guilt or innocence and
possible punishment to the TDOC liaison, their actions
were not in violation of TCA § 41-21-110(5).

   Finally, TCA § 27-8-101 states that as an extra-
ordinary remedy the Common Law Writ of Certiorari
can be utilized where there is no other plain, speedy, or
adequate remedy. Henry v. Board of Claims, 638
S.W.2d 825 (M.D. Tenn. 1982 Clark v. Metropolitan
Government of Nashville, 827 S.W.2d 312 (M.D.
Tenn. 1991). Under Federal Law, Petitioner has a
plain, speedy, and adequate remedy available if he truly
believes his civil rights have been violated. Dismissal
of this action for failure to state a claim upon which
relief can be granted will not prevent Petitioner from
pursuing other possible avenues for adequate relief.




                               -7-
                               CONCLUSION

         The Defendants respectfully request that the Petition
       against them be dismissed for failure to state a claim
       upon which relief can be granted.



Exhibit A to the memorandum is an uncertified document reading as follows:

                             State of Tennessee
                          Department of Correction
                      South Central Correctional Center
                                P.O. Box 279
                       Clifton, Tennessee 38425-0279



                                                 FILED
                                            May 31, 1996
                                            Time: 10:30 a.m.
                                            Linda Blackwell (signature)
                                            Clerk & Master
                                            Wayne County Tenn
       MEMORANDUM

       TO:            Kevin Myers
                      Warden
                      SCCC

       FROM:          Gary Overbey
                      Commissioner’s Designee
                      TDOC Liaison, SCCC

       SUBJECT:       Inmate Disciplinary Committee
                      Recommendation

       DATE:          3-4-96


       I have reviewed the recommendation of the disciplinary
       committee on docket number(s) 23378, inmate Michael
       Randall, TDOC # 209149.

        X      I approve of the disciplinary committee
               recommendation.

       ___     I am modifying the committee’s recommendation
               as follows:

       15 days punitive segregation - Possession Security
       Threat Group. Class A


       Additional comments:

                                EXHIBIT A

                                     -8-
       Exhibit B to the memorandum is an uncertified, unsigned “appeal to commissioner.”



       Bound in the record following the foregoing is a three-page, unsworn “Statement of

Undisputed Facts” signed by counsel for defendants.



       The order of dismissal states:

                 It appeared to the Court that the motion for summary
               judgment was considered by the Court on June 17, 1996.

                  It appeared to the Court that the motion for summary
               judgment should be granted. The Court finds that T.C.A.
               27-8-101 states that as an extraordinary remedy the
               Common Law Writ of Certiorari can be utilized where
               there is no other plain, speedy, or adequate remedy. The
               Petitioner has a plain, speedy and adequate remedy
               available if he truly believes his civil rights have been
               violated. Dismissal of this action for failure to state a
               claim upon which relief can be granted will not prevent
               Petitioner from pursuing other possible avenues for
               adequate relief.

                  It is therefore ordered by the Court that the motion
               for summary judgment filed by the Respondents be
               granted, and this Petition for Writ of Certiorari be
               dismissed.



       Nothing is found in the record or briefs to support the finding of the Trial Court that,

“Petitioner has a plain, speedy and adequate remedy.”



       On appeal, defendant’s state the issue for review as follows:

               1.     Did the Trial Court err in granting defendants’,
               Kevin Myers and Dale Kilburn, Motion for Summary
               Judgment for failure to state a claim upon which relief
               can be granted.



       Defendants argue for dismissal because petitioner’s petition challenges the inherent

correctness of the decision of the Disciplinary Board. However, the petition also alleges

defects in procedure which should be examined.




                                              -9-
       Defendants next argue that: “The Action of the Disciplinary Board was Legal and

Acocrding to TDOC Policy.” The argument contains numerous factual allegations

unsupported by citations to the record as required by Rule 6 of the Rules of this Court. It is

presumed that this argument and its supporting facts are derived from the “Memorandum of

Law” quoted heretofore.



       The motion before the Trial Court and this Court is a motion to dismiss for failure to

state a claim for which relief can be granted. Although a part of the complaint (inherent error

of result) is subject to an adverse ruling, other parts of the complaint (procedure) state a claim

which could have merit. Accordingly, the petition is not subject to dismissal for failure to

state a claim for which relief can be granted.



               Defendants apparently rely upon facts not stated in the petition but contained

in the “memorandum of Law,” exhibits thereto and/or “Statement of Undisputed Facts,” none

of which qualifies as competent evidence to support a motion for summary judgment. TRCP

Rule 56.05.



       Under the circumstances, the dismissal of the petition was not justified and it is

therefore reversed. Costs of this appeal are assessed against the defendants. The cause is

remanded to the Trial Court for further proceedings.




                          REVERSED AND REMANDED

                                                 _______________________________________
                                                 HENRY F. TODD
                                                 PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

_____________________________________
SAMUEL L. LEWIS, JUDGE

_____________________________________
BEN H. CANTRELL, JUDGE


                                                 -10-
