                                  FILED
                                  November 10, 1999

                              Cecil Crowson, Jr.
                             Appellate Court Clerk
                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
               ______________________________________________

LESLEY BUFORD,

      Petitioner-Appellant,
                                               Davidson Chancery No. 98-616-II
Vs.                                            C.A. No. M1998-00157-COA-R3-CV

TENNESSEE DEPARTMENT
OF CORRECTION, ET AL,

     Respondents-Appellees.
______________________________________________________________________
______

                FROM THE DAVIDSON COUNTY CHANCERY COURT
               THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR



                                 Lesley Buford, Pro Se

                                Tom Anderson of Jackson
                                     For Appellees

                    Paul G. Summers, Attorney General and Reporter
                          Michael E. Moore, Solicitor General
                       Elena J. Xoinis, Assistant Attorney General
                   For Appellee, Tennessee Department of Correction




                              AFFIRMED AND REMANDED

                                     Opinion filed:




                                                                                 Page 1
                                                         W. FRANK CRAWFORD,
                                                         PRESIDING JUDGE, W.S.



CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE




       This case involves a petition for writ of certiorari filed by a state prisoner.    The

prisoner challenges a disciplinary proceeding brought against him.            The trial court

dismissed the suit for failure to state a claim upon which relief can be granted. We affirm.

                                    FACTS

       Appellant, Lesley Buford, is an inmate in the custody of the Tennessee Department

of Correction. On December 1, 1997, the appellant appeared before the disciplinary board

at the South Central Correctional Facility in Clifton, Tennessee, on the charge of creating a

disturbance at the prison on the evening of November 18, 1997. The disciplinary board

found Buford guilty of a Class B infraction and sentenced him to fifteen days in punitive

segregation, fined him four dollars and imposed a four month package restriction.

       The appellant appealed the disciplinary board’s decision to Warden Kevin Myers,

who affirmed the decision and punishment. Buford then appealed to the Department of

Correction’s Assistant Commissioner Jim Rose, who also affirmed the conviction.

Subsequently, Correction Commissioner, Donal Campbell, affirmed the conviction on

January 20, 1998.

       On February 27, 1998, Buford filed in the Chancery Court for Davidson County,

Tennessee, ten petitions for writs of certiorari against the following defendants: Kevin

Meyers, Raleigh Brewer, Jim Rose, Donal Campbell, Tina Schachle, Ira Campbell, Dale

Brewer, Roscoe Clayton, Fred Alexander, and David Hensley. The trial court found that the


                                                                                                Page 2
complaints involved common questions of law and fact and arose out of a common

occurrence. Specifically, in his petitions for writs of certiorari, Buford contended that the

Disciplinary Board (“Board”) was an illegal tribunal because South Central Correctional

Facility, a private prison operated by Corrections Corporation of America, was without

authority to take disciplinary action against inmates. Additionally, Buford alleged that the

Board violated his rights to due process. The trial court entered an order on March 12,

1998, pursuant to Rule 42, Tenn.R.Civ.P. consolidating the ten petitions.

       On July 27, 1998, the Tennessee Department of Correction filed a Rule 12.02(6)

Tenn.R.Civ.P. motion to dismiss the complaint for failure to state a claim upon which relief

can be granted. By order entered September 4, 1998, the trial court dismissed Buford’s

petitions. Buford timely filed a motion to alter or amend the judgment on September 21,

1998, which the trial court denied by order entered November 2, 1998. The appellant timely

filed a notice of appeal on November 25, 1998, and presents four issues for review as

stated in his brief:

               1. Did the Trial Court err in determining that Petitioner had not
               stated a claim upon which relief could be granted?

               2. Did the Trial Court err in determining that Petitioner was not
               entitled to due process protections?

               3. Did the Trial Court err in determining that the Tennessee
               Department of Correction is the only and sole respondent to a
               Petition for Writ of Certiorari?

               4. Did the Trial Court err in denying the Motion to Amend
               Petition after the Motion to Amend petition had been previously
               granted?

       Buford asserts that the trial court erred in dismissing his petitions for writs of

certiorari by determining that he was not entitled to due process protections, in determining

that the Tennessee Department of Correction is the only proper respondent to a petition for

writ of certiorari, and by denying his motion to amend the petition.

       We first turn our attention to the proper party to this proceeding. The trial court found,

and we affirm, that the only proper party to this proceeding is the Tennessee Department of



                                                                                                    Page 3
Correction. T.C.A. § 27-9-104 (1980) provides:

              The petition shall be addressed to the presiding chancellor and
              shall name as defendants the particular board or commission
              and such other parties of record, if such, as were involved in the
              hearing before the board or commission, and who do not join as
              petitioners.

       In this case, the only party of record was the department, and, thus, the only proper

defendant was the Tennessee Department of Correction. The trial court properly dismissed

the complaint against the individual defendants because they are not the correct parties to

be sued.

       Buford next asserts that a private prison’s disciplinary board has no authority to

discipline prisoners.   We do not disagree with this assertion.       Tennessee law clearly

prohibits the delegation of power to discipline prisoners to a private prison contractor.

T.C.A. § 41-24-110(5) (1986) provides in pertinent part:

              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:
              .......
              (5) Granting, denying or revoking sentence credits; placing an
              inmate under less restrictive custody or more restrictive
              custody; or taking any disciplinary actions.

       In Mandela v. Campbell et al., 978 S.W.2d 531 (Tenn. 1998), the Supreme Court

addressed the issue of whether private contractor employees were authorized under law to

sit on disciplinary boards. It is noteworthy that the Mandela case arose out of the South

Central Correctional Facility, the same prison at issue in the instant case. The Supreme

Court found that the Uniform Disciplinary Procedures mandate the appointment of a liaison

between the Department of Correction and the private contractor. Id. at 532. Under Policy

No. 9502.01(IV)(A), the Commissioner’s designee is a Department of Correction employee

who is “authorized” by the Commissioner to serve as the approving authority for specified

actions at privately contracted prisons. Policy 9502.01(IV)(A) provides:

              A commissioner’s designee shall:

              Observe all Class A and B disciplinary hearings, and approve



                                                                                               Page 4
              or modify all recommendations of the disciplinary board at the
              time of the hearing...

Accordingly, the disciplinary board conducts hearings, reviews the evidence and makes

recommendations to the Department of Correction liaison who must approve or modify the

board’s recommendation. As noted in Mandela,

              The final approval of the disciplinary recommendation rested
              solely with the TDOC commissioner’s designee. The 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. Accordingly, the TDOC retained the
              authority to punish the prisoners and, in fact, imposed the
              punishments in the cases now before us.

Id. at 533.

       The trial court found that Roscoe Clayton, an employee of the Tennessee

Department of Correction and the Commissioner’s designee, was present at the

disciplinary hearing and approved the board’s recommendation. In the present case, not

only did the Department of Correction representative review the case and approve the

board’s recommendation, but, also, the Commissioner reviewed the findings and

recommendations and approved the punishment.               In initiating this cause of action in

the trial court, Buford filed numerous petitions for writs of certiorari. In Tennessee, two types

of certiorari exist. T.C.A. § 27-8-101 provides the common law writ of certiorari, and T.C.A.

§ 27-8-102 provides the statutory writ of certiorari. Fairhaven Corp. v. Tenn. Health

Facilities Comm., 566 S.W.2d 885, 886 (Tenn. App. 1976).

       Under the common law writ, the intrinsic correctness of the decision of the lower

tribunal is not subject to judicial review. Powell v. Parole Eligibility Review Bd., 879

S.W.2d 871, 873 (Tenn. App. 1994). Under the common law writ, the scope of review is

generally limited to a determination of whether the administrative body acted within its

jurisdiction or acted arbitrarily, capriciously, or illegally. Cooper v Williamson County Bd.

of Educ., 746 S.W.2d 176, 179 (Tenn. 1987). In Cooper, the Court said:

              The scope of review under the common law writ does not



                                                                                                    Page 5
                ordinarily extend to a redetermination of the facts found by the
                administrative body. As we observed in Davison v. Carr, [659
                S.W.2d 361 (Tenn. 1983)]:

                        Generally, under common law certiorari, the
                        scope of review is limited to the record to
                        determine as a question of law whether there is
                        any material evidence to support the agency’s
                        findings. However, new evidence is admissible
                        on the issue of whether the administrative body
                        exceeded its jurisdiction or acted illegally,
                        capriciously or arbitrarily.

                Id. at 363.

746 S.W.2d at 179.

        Buford asserts that the trial court erred in dismissing his petition for a statutory writ of

certiorari pursuant to T.C.A. § 27-8-102 (1981), which provides that the statutory writ of

certiorari is available in five instances: “(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.” The only one of the five possible circumstances under which the statutory writ

would be arguably available is the second situation, “where no appeal is given.” If the

statutory writ lies, review under the writ is de novo and may be used to correct errors of fact

and law committed by the inferior tribunal. Boyce v. Williams, 389 S.W.2d 272, 276 (Tenn.

1965). Moreover, the reviewing court may conduct a trial on the merits. Roberts v. Brown,

310 S.W.2d 197, 206-208 (Tenn. App. 1958).

        In an excellent and often cited article, Judge Ben Cantrell, now of this Court,

summarized the case law and described the requirements that must be met for issuance of

a statutory writ of certiorari :

                In summary, in the absence of a specific statute expressly
                granting the writ, the statutory writ of certiorari is available only if
                the following requirements are met: (1) the order of the
                administrative body of which review is sought is one for which
                no judicial review is provided; (2) the function performed by the
                lower tribunal is essentially judicial in nature; (3) the order for
                which review is sought finally determines the rights of the
                petitioner. Cantrell, Review of Administrative Decisions by
                Writ of Certiorari in Tennessee , 4 Mem. St. U.L. Rev. 19, 27-28
                (1973).



                                                                                                       Page 6
       There is a split of authority among the appellate courts in this state regarding whether

the functions of a prison’s disciplinary board are “essentially judicial in nature.” In two

previous unreported decisions, the Western Section of this Court determined that the

disciplinary board’s action was essentially judicial in nature.   Cobb v. Vinson et al., No.

02A01-9707-CV-00144 (Tenn. App. April 1, 1998); Williams v. Tenn. Dept. of Correction

, No. 02A01-9503-CV-00046 (Tenn. App. Oct. 2, 1995). However, in Ray v. State, 577

S.W.2d 681, 682 (Tenn. Crim. App. 1978) cert. denied (1979), the Court of Criminal

Appeals, relying upon State ex rel. Turner v. Gore, 175 S.W.2d 317 (Tenn. 1943), held

that proceedings before prison disciplinary boards are administrative in nature and are not

judicial proceedings. Moreover, the Middle Section of this Court stated in Friedman v.

Bass et al., No. 01A01-9707-CH-00331 (Tenn. App. Nov. 19, 1997), “[T]he only vehicle for

seeking judicial review of a prison disciplinary proceedings is a petition for common-law

writ of certiorari.” Id. at *1. (citing Bishop v. Conley, 894 S.W.2d 294, 196 (Tenn. Crim.

App. 1994); Snodgrass v. Noles, No. 02C01-9403-CC-00037 (Tenn. Crim. App. July 8,

1994)). See also, Blackmon v. Campbell et al., No. 02A01-9807-CH-00361 (Tenn. App.

Feb. 23, 1999).

       Upon further consideration, the Western Section of this Court departs from our

holdings in Williams and Cobb, and declares, along with the other courts, that the functions

of prison disciplinary boards are administrative and not judicial in nature. Therefore, the

statutory writ of certiorari, T.C.A. § 27-8-102, is not available for review of proceedings

taken by a prison disciplinary board. Accordingly, we conclude that the trial court did not err

in denying the petition for writ of statutory certiorari.

       We now consider whether the trial court erred in dismissing the appellant’s petition

for common-law writ of certiorari.          As noted above, the scope of review under the

common-law writ of certiorari is very narrow. In Powell v. Parole Eligibility Review Bd.,

879 S.W.2d 871, 873 (Tenn. App. 1994), this Court stated:




                                                                                                  Page 7
               The scope of review under the common-law writ, however, is
               very narrow. It covers only an inquiry into whether the Board has
               exceeded its jurisdiction or is acting illegally, fraudulently, or
               arbitrarily. Conclusory terms such as “arbitrary and capricious”
               will not entitle a petitioner to the writ.        At the risk of
               oversimplification, one may say that it 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 constitutional or lawful manner, then
               the decision would not be subject to judicial review.

Id. at 873 (citations omitted).

       Buford asserts that the disciplinary board proceedings violated his procedural due

process rights. In order to prevail with these claims, he must demonstrate that the conduct

of prison officials has imposed “atypical and significant hardships on the inmate in relation

to the ordinary incident of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct.

2293, 2300, 132 L.Ed.2d 418 (1995).         Prison disciplinary proceedings are within the

expected parameters of a prison sentence and are an ordinary part of prison life. Sandin v.

Conner, 515 U.S. at 485, 115, S.Ct. at 2301. See also, Friedmann v Bass et al., No.

01A01-9707-CH-00331.

       We find nothing arbitrary or improper in the conduct of Buford’s disciplinary hearing

at the South Central Correctional Facility.       Buford received adequate notice of the

proceedings against him, he testified on his own behalf at the disciplinary hearing, and he

waived his right to call witnesses. Moreover, the disciplinary board provided a statement of

its findings, and the punishment meted out - fifteen days punitive segregation, a four dollar

fine, and a four month package restriction - is not the atypical and significant hardship

contemplated by Sandin. Accordingly, we affirm the trial court’s decision to dismiss Buford’

s petition.

       Finally, Buford complains that the trial court erred by denying his petition to amend

the complaint to name David Hensley as a defendant. Buford filed a motion to amend the

petition on May 19, 1998, which the trial court granted by order entered July 29, 1998.

However, in the final order entered September 8, 1998, the trial court denied Buford’s




                                                                                                Page 8
motion to amend, finding correctly that the only proper party defendant is the Tennessee

Department of Correction.

       Accordingly, the order of the trial court is affirmed. The case is remanded to the trial

court for such further proceedings as are necessary. Costs of appeal are assessed against

appellant.


_________________________________
                                                  W. FRANK CRAWFORD,
                                                  PRESIDING JUDGE, W.S.

CONCUR:


____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




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