                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs May 14, 2002

 HILTON JEFFRIES v. TENNESSEE DEPARTMENT OF CORRECTION

                    Appeal from the Chancery Court for Davidson County
                     No. 01-534-I    Irvin H. Kilcrease, Jr., Chancellor


                  No. M2001-02300-COA-R3-CV - Filed December 31, 2002


This appeal involves a prison disciplinary proceeding. A prisoner at the Southeast Regional
Correctional Facility was charged with four serious disciplinary infractions. He pleaded guilty to
three charges, and a prison disciplinary board found him guilty of the fourth. The board placed the
prisoner in punitive segregation for five days and ordered him to pay $810 in restitution from his
inmate trust fund account. The prisoner filed a petition for common-law writ of certiorari in the
Chancery Court for Davidson County alleging (1) that his guilty pleas had been coerced and (2) that
he had been denied due process on the fourth charge by the board’s failure to provide him twenty-
four hours notice of the hearing and its interference with his opportunity to present exculpatory
evidence. The trial court granted the Tennessee Department of Correction’s motion for summary
judgment and dismissed the prisoner’s petition. We have determined that the trial court erred by
granting the summary judgment with regard to the $810 restitution order because the record contains
material factual disputes regarding whether the prisoner waived his right to twenty-four hours notice
of the hearing and whether the board refused to permit him to call an exculpatory witness.

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

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL , JJ., joined.

Hilton Jeffries, Only, Tennessee, Pro Se.

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

                                            OPINION

                                                 I.

      Hilton G. Jeffries was indicted for aggravated rape in 1987 after his eight-year-old daughter
complained to her step-mother that he had repeatedly raped and engaged in oral sex with her. A
Montgomery County jury found him guilty of aggravated rape and sentenced him to serve forty years
in the state penitentiary.1 Mr. Jeffries was eventually housed in the Southeastern Tennessee State
Regional Correctional Facility in Pikeville.

        After arriving at the Pikeville facility, Mr. Jeffries struck up a friendship with Shelby A.
Frazier, a prison employee who worked in the same area where his prison job was located. After the
warden of the institution declined Mr. Jeffries’s request for assistance on some sort of personal
matter, Ms. Frazier took it upon herself to begin helping Mr. Jeffries. Accordingly, Ms. Frazier
loaned Mr. Jeffries her cellular telephone which he used to make personal calls to Florida and other
locations at Ms. Frazier’s expense. She provided Mr. Jeffries with paper, envelopes, and mailing
labels that she had purchased for him from local retailers. Ms. Frazier also used a state-owned
copying machine during her working hours to make copies for Mr. Jeffries.

        Sometime in 2000, the institution began an internal investigation into Ms. Frazier’s
relationship with Mr. Jeffries. During this investigation, an internal affairs officer discovered the
cellular telephone, the office supplies, and the copied documents in Mr. Jeffries’s work area. The
officer filed disciplinary charges against both Ms. Frazier and Mr. Jeffries. On November 28, 2000,
Mr. Jeffries received written notice that he had been charged with four violations of institutional
rules: (1) possession of contraband for having a cell phone; (2) abuse of telephone privileges for
using the cell phone; (3) solicitation of staff for striking up a friendship with Ms. Frazier and using
her for his personal gain; and (4) larceny for acquiring office supplies and using a state-owned copy
machine.

       Mr. Jeffries was immediately transferred to the Northeast Correctional Complex in Mountain
City; however, he was returned to the Pikeville facility on November 29, 2000 for a disciplinary
hearing. At that time, Mr. Jeffries pleaded guilty to the possession of contraband, the abuse of
telephone privileges, and the solicitation of staff charges. A prison disciplinary board then
conducted a hearing on the larceny charge and ultimately found Mr. Jeffries guilty. The board
ordered Mr. Jeffries to serve five days in punitive segregation and pay $810 restitution for the office
supplies and the cost of the copies made on the prison’s copying machine.

       On February 16, 2001, Mr. Jeffries filed a petition for common-law writ of certiorari2 in the
Chancery Court for Davidson County.3 In addition to alleging that his three guilty pleas had been
coerced, he alleged that the disciplinary board denied him due process by disregarding the

         1
           Mr. Jeffries’s co nviction was affirmed on app eal. State v. Jefferies, No. C.C.A. 88-131-III, 1989 WL 4938,
at *1 (T enn. C rim. App. Jan. 24 , 198 9). H is two later attemp ts to collaterally attac k his conviction were unsuccessful.
 Jefferies v. State, No. 01C0 1-9502-CC -00044, 199 5 W L 4082 55 (Tenn. Crim. Ap p. July 6, 1995) perm. app. denied
(Tenn. No v. 27, 199 5); Jefferies v. Bowlen, No. 03C01-9708-CC-00345, 1998 WL 473885 (Tenn. Crim. App. Aug. 14,
1998) (No Tenn. R. A pp. P . 11 application filed ). In his three appeals to the Tennessee Court of Criminal Appeals, Mr.
Jeffries’s na me appe ars as “H ilton G len Jefferies.”

         2
          Mr. Jeffries also sought a statutory writ of certiorari. Be cause the common-law writ of certiorari is the proper
vehicle for reviewing the actions of a p rison d isciplinary board, we will not consider this claim .

         3
           Mr. Jeffries filed his petition in the wrong county. Tenn. Code Ann. § 41-21-803 (1997) required the petition
to be filed in Bledsoe County where the Pikeville facility is located. Hawkins v. Te nnessee Dep ’t of Corr., No. M2001-
00473-COA-R3-CV, 200 2 W L 16 777 18, at *7-8 (Tenn. Ct. App. July, 25, 2002) (No Tenn. R. App. P. 11 application
filed). We will not vacate the judgment in this case because Mr. Jeffries filed his petition before we decided Hawkins
v. Tenn essee Dep’t of Co rr. and b ecause neither party q uestioned ve nue in the trial court.

                                                             -2-
Department’s Uniform Disciplinary Procedures in two ways. First, he asserted that he had not been
given the required twenty-four hours notice of the charges and that he was forced to proceed with
the hearing even after he refused to waive his right to notice. Second, he asserted that he was denied
the right to present exculpatory evidence at the hearing.

        On July 10, 2001, after obtaining two 45-day extensions for reasons that are not apparent in
the record,4 the Office of the Attorney General responded to Mr. Jeffries’s petition. This response
consisted of certified copies of the institutional records regarding Mr. Jeffries’s four disciplinary
offenses, an affidavit of the chairperson of the prison disciplinary board, a motion for summary
judgment,5 and a statement of undisputed facts. Mr. Jeffries responded to the Attorney General’s
motion by filing his own affidavit as well as two affidavits by Ms. Frazier6 and a copy of a letter
from the warden of the Southeast Regional Correctional Facility stating that Ms. Frazier had been
terminated for providing the office supplies which served the basis for the punishment Mr. Jeffries
received. On September 5, 2001, the trial court entered an order granting the Department a summary
judgment and dismissing Mr. Jeffries’s petition without explanation. Mr. Jeffries has appealed.

                                                             II.
                                            THE STANDARD OF REVIEW

        We cannot review this appeal using the standards of review normally associated with
common-law writs of certiorari because the Department elected to file a motion for summary
judgment to dispose of Mr. Jeffries’s petition. This is a curious tactical choice in light of the fact
that the Department had filed its complete record of Mr. Jeffries’s hearing before the prison
disciplinary board. Ordinarily, once the complete record has been filed, the reviewing court may
proceed to determine whether the petitioner is entitled to relief without any further motions and, if
the court chooses, without a hearing. In doing so, the reviewing court may resolve any material
factual disputes that may exist in the record.

        The Department’s decision to move for a summary judgment prevents the trial court from
simply reviewing the record to determine whether the petitioner is entitled to relief because Tenn.
R. Civ. P. 56 does not permit the trial court to grant the motion if the record contains material factual
disputes. Thus, by filing the motion, the Department has introduced a consideration into the
decision-making process -- the existence of material factual disputes -- that is not ordinarily part of
a certiorari proceeding. The Department has elected to use Tenn. R. Civ. P. 56 as the vehicle for
disposing of Mr. Jeffries’s petition. Therefore, the Department must dance by the tune it has asked
the piper to play.


         4
          This is not the first occasion when the Office of the Attorney General has failed to file a timely request for an
extension of time to answer a priso ner’s petition. Hickman v. Tennessee Bd. of Paroles, 78 S.W.3d 285, 288 (Te nn. Ct.
App. 20 01).

         5
           Regrettably, the motion for summary judgment, like so many similar motions filed by the Office of the Attorney
General in cases of this sort, failed to comp ly with Tenn. R . Civ. P. 7.02 beca use it did not state with particularity the
grounds for the m otion. See, e.g., Hickman v. Tennessee Bd. of Paroles, 78 S .W .3d at 287 ; Pendleton v. Mills, 73
S.W .3d 1 15, 1 19 n.7 (T enn. C t. App . 200 1); Robinson v. Clement, 65 S .W .3d 6 32, 6 35 n.2 (T enn. C t. App . 200 1).

         6
          Ms. Frazier states in the affidavits that she would have testified that Mr. Jeffries never solicited her assistance
and he had not req uested her to p rovid e him the office sup plies or to use the State’s copying machine.

                                                            -3-
         The standards for reviewing summary judgments on appeal are well-settled. Summary
judgments are proper in virtually any civil case that can be resolved on the basis of legal issues alone.
Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993);
Church v. Perales, 39 S.W.3d 149, 156 (Tenn. Ct. App. 2000). They are not, however, appropriate
when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04. Thus, a summary
judgment should be granted only when the undisputed facts, and the inferences reasonably drawn
from the undisputed facts, support one conclusion – that the party seeking the summary judgment
is entitled to a judgment as a matter of law. Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d
265, 269 (Tenn. 2001); Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 66 (Tenn. 2001);
Goodloe v. State, 36 S.W.3d 62, 65 (Tenn. 2001).

        The party seeking a summary judgment bears the burden of demonstrating that no genuine
dispute of material fact exists and that it is entitled to a judgment as a matter of law. Shadrick v.
Coker, 963 S.W.2d 726, 731 (Tenn. 1998); Pendleton v. Mills, 73 S.W.3d at 121; Armoneit v. Elliott
Crane Serv., 65 S.W.3d 623, 627 (Tenn. Ct. App. 2001). In order to be entitled to a judgment as a
matter of law, the moving party must either affirmatively negate an essential element of the non-
moving party’s claim or establish an affirmative defense that conclusively defeats the non-moving
party’s claim. Byrd v. Hall, 847 S.W.2d at 215 n. 5; Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn.
Ct. App. 2000).

        Once the moving party demonstrates that it has satisfied Tenn. R. Civ. P. 56’s requirements,
the non-moving party must demonstrate how these requirements have not been satisfied. Bain v.
Wells, 936 S.W.2d 618, 622 (Tenn. 1997). Mere conclusory generalizations will not suffice.
Cawood v. Davis, 680 S.W.2d 795, 796-97 (Tenn. Ct. App. 1984). The non-moving party must
convince the trial court that there are sufficient factual disputes to warrant a trial (1) by pointing to
evidence either overlooked or ignored by the moving party that creates a factual dispute, (2) by
rehabilitating evidence challenged by the moving party, (3) by producing additional evidence that
creates a material factual dispute, or (4) by submitting an affidavit in accordance with Tenn. R. Civ.
P. 56.07 requesting additional time for discovery. McCarley v. West Quality Food Serv., 960 S.W.2d
585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d at 215, n. 6. A non-moving party who fails to carry
its burden faces summary dismissal of the challenged claim because, as our courts have repeatedly
observed, the “failure of proof concerning an essential element of the cause of action necessarily
renders all other facts immaterial.” Alexander v. Memphis Individual Practice Ass’n, 870 S.W.2d
278, 280 (Tenn. 1993); Strauss v. Wyatt, Tarrant, Combs, Gilbert & Milom, 911 S.W.2d 727, 729
(Tenn. Ct. App. 1995).

         Summary judgments enjoy no presumption of correctness on appeal. Scott v. Ashland
Healthcare Ctr., Inc., 49 S.W.3d 281, 285 (Tenn. 2001); Penley v. Honda Motor Co., 31 S.W.3d
181, 183 (Tenn. 2000). Accordingly, appellate courts must make a fresh determination that the
requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51
(Tenn. 1997); Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn. 1997). We must consider the evidence
in the light most favorable to the non-moving party, and we must resolve all inferences in the non-
moving party’s favor. Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196 (Tenn. 2001); Memphis
Hous. Auth. v. Thompson, 38 S.W.3d 504, 507 (Tenn. 2001). When reviewing the evidence, we
must determine first whether factual disputes exist. If a factual dispute exists, we must then
determine whether the fact is material to the claim or defense upon which the summary judgment



                                                  -4-
is predicated and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall, 847
S.W.2d at 214; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App.1998).

                                               III.
                                         THE GUILTY PLEAS

        We turn first to Mr. Jeffries’s claim that his guilty pleas to the charges of possession of
contraband, abuse of telephone privileges, and solicitation of staff were coerced. He asserts that the
internal affairs officer threatened him by telling him that he should plead guilty to avoid being placed
in maximum security, being charged with more serious offenses, and being prevented from
defending himself. The Department has presented no evidence to rebut these assertions.

        An otherwise valid guilty plea is not rendered involuntary simply because it is motivated by
an accused’s desire to limit the penalty he or she is facing. Newsome v. State, 995 S.W.2d 129, 134
(Tenn. Crim. App. 1998); Hicks v. State, 983 S.W.2d 240, 248 (Tenn. Crim. App. 1998). Thus, an
accused who makes a rational decision to plead guilty to avoid threatened harsher punishment cannot
later assert that his or her guilty plea was involuntary. Lovato v. State, No. 03C01-9108-CR-00244,
1992 WL 10896, at * 3 (Tenn. Crim. App. Jan. 28, 1992), perm. app. denied (Tenn. May 18, 1992).

        There is nothing arbitrary or illegal about threatening a prisoner with the harsher punishment
in order to induce a guilty plea to a disciplinary infraction. Despite the fact that Mr. Jeffries’s
assertion that he was threatened with harsher punishment unless he pleaded guilty to three of the
disciplinary charges stands uncontradicted, it is also uncontradicted that Mr. Jeffries made a knowing
and rational choice to plead guilty in order to receive more lenient punishment. In light of this
decision, Mr. Jeffries is in no position to challenge the voluntariness of his guilty pleas to three of
the four disciplinary charges filed against him.

                                           IV.
                            THE ALLEGED DUE PROCESS VIOLATIONS

        Mr. Jeffries also asserts that the prison disciplinary board violated his due process rights with
regard to the larceny charge by failing to abide by the Department’s Uniform Disciplinary
Procedures. The Department’s response is two-fold. First, the Department denies that the
disciplinary board failed to comply with the Uniform Disciplinary Procedures. Second, relying on
Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293 (1995), it argues that any possible departure from
the Uniform Disciplinary Procedures cannot provide the basis for a due process claim because the
punishment Mr. Jeffries received did not impose an atypical and significant hardship on him.

       Because the trial court failed to explain the legal basis for its decision to grant the
Department’s motion for summary judgment, we presume that it must have agreed with both of the
Department’s theories. We have determined that the Department’s and the trial court’s reliance on
Sandin v. Conner is misplaced. We have also determined that the record contains material factual
disputes regarding the Department’s compliance with its Uniform Disciplinary Procedures.




                                                  -5-
                                                    A.
                                    The Application of Sandin v. Conner

        Denial of due process claims such as the one Mr. Jeffries presents in this case are analyzed
using a two-part inquiry. The first question is whether the plaintiff has identified a “liberty” or
“property” interest that is entitled to protection by the Due Process Clause.7 An affirmative answer
to this question requires the consideration of a second question – what process is due under the
particular circumstances? Board of Regents v. Roth, 408 U.S. 564, 571-73, 92 S. Ct. 2701, 2706-07
(1972). The answer to the second question is situational because due process is a flexible concept
that calls for only those procedural protections that the particular situation demands. Greenholtz v.
Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1, 12-13, 99 S. Ct. 2100, 2106 (1979);
Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972).

         It is axiomatic that the Due Process Clause is not triggered by the deprivation of an interest
that is neither a liberty interest nor a property interest. Rowe v. Board of Educ., 938 S.W.2d 351, 354
(Tenn. 1996); Robinson v. Clement, 65 S.W.3d at 636. In the context of litigation such as this case,
the United States Supreme Court has held that state prisoners do not have a liberty interest in the
procedural rights created by internal prison disciplinary regulations unless the punishment they
receive “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents
of prison life.” Sandin v. Conner, 515 U.S. at 483-84, 715 S.Ct. at 2300. Accordingly, the fate of
the due process claims of a prisoner seeking judicial review of internal disciplinary proceedings
depends upon the punishment the prisoner received.

         The Tennessee Supreme Court has yet to address the application of Sandin v. Conner to
common-law certiorari proceedings such as the one involved in this case. However, many members
of this court have embraced the decision and have used it frequently to dispose of petitions filed by
prisoners seeking judicial review of prison disciplinary proceedings. See, e.g., Willis v. Tennessee
Dep’t of Corr., No. M2000-01397-COA-R3-CV, 2002 WL 1189730, at *4 (Tenn. Ct. App. June 5,
2002) perm. app. granted (Tenn. Dec. 9, 2002); Reid v. Sundquist, No. 01A01-9709-CH-00494,
1998 WL 83669, at *1 (Tenn. Ct. App. Feb. 27, 1998) (No Tenn. R. App. P. 11 application filed).
Typically, these cases hold that placement in maximum security, the loss of good time credits, the
loss of a prison job, and small fines, either separately or in combination, do not trigger due process
concerns because the punishments do not impose an atypical and significant hardship on the prisoner
in relation to the ordinary incidents of prison life.8

       This court currently differs on the length of Sandin v. Conner’s reach. Willis v. Tennessee
Dep’t. of Corr., 2002 WL 1189730, at *15 (Koch, J., dissenting). However these differences are


         7
             U.S. Const. amend. XIV, § 1.

         8
           Robinson v. Clement, 65 S .W .3d at 637 (twenty days in punitive segregation, a $5 fine, and loss of a prison
job); Ahkeen v. Camp bell, No. M2 000-024 11-CO A-R3-CV , 2001 W L 1346 250, at *3 (Tenn. Ct. App. No v. 2, 2001)
(No Tenn. R. App. P. 11 application filed) (five days in punitive segregation, suspended for sixty days, and $20 fine);
Sea ls v. Bowlen, 2001 WL 8 40271, at *6 (placement in ma ximum security, $5 fine, ten days in punitive segregation, and
loss of one month of good time credits); Buford v. Tennessee D ep't of Corr., No. M1998-00157-COA-R3-CV, 1999 WL
1015672, at *5 (T enn. C t. App . Nov.10, 199 9) (N o T enn. R . App . P. 11 application filed) (fifteen days in punitive
segregation, $4 fine, and four-mo nth package restrictio n); Blackmon v. Camp bell, No. 01A01-9807-CH-00361, 1999
W L 85518, at *2 (Tenn. Ct. App. Feb. 23, 199 9) (No T enn. R. App. P. 11 ap plication filed) (removal from a prison job).

                                                           -6-
limited to the application of Sandin v. Conner’s reasoning in cases where a prisoner claims the loss
of a liberty interest based on the denial of procedural rights in prison disciplinary hearings. We have
not heretofore directly considered the application of Sandin v. Conner’s reasoning to punishment that
involves the loss of a property interest. We now conclude that Sandin v. Conner does not apply to
a prisoner’s due process claims predicated on the loss of a property interest.

        Sandin v. Conner’s focus on “freedom from restraint” cannot be applied in the context of a
taking of a prisoner’s property. Its central holding that due process is not necessary as long as the
prisoner’s punishment is not disproportionate to the rigors of prison life does not apply when the
actions of a prison official deprive a prisoner of his or her property. Bulger v. U.S. Bureau of
Prisons, 65 F.3d 48, 50 (5th Cir. 1995); Arney v. Simmons, 923 F. Supp. 173, 177, n. 4 (D. Kan.
1996); Wenzler v. Warden of G.R.C.C., 949 F. Supp. 399, 402, n. 1 (E.D. Va. 1996).9 Thus, a prison
disciplinary board must follow all applicable procedural rules when it imposes a money judgment
against an inmate if the judgment deprives the prisoner of a property interest.

       State prisoners in Tennessee have a property interest in the funds in their prison trust fund
accounts.10 While the Department has the authority to withdraw money from a prisoner’s account
to cover various costs and fees, the prisoner still retains a property interest in the money in his
account. See Tenn. Code Ann. §§ 40-25-143, 41-21-237 (2002); Tenn. Dep’t Corr. Policy No.
208.01. Therefore, the due process clause protects a prisoner’s property interest in his or her trust
fund account, and the Department cannot take that money without due process of law unless the




         9
             The federal courts are split on whether the rationale of Sandin v. Conner should be extende d to p roperty
interest claims arising from prison conditions. In addition to the Fifth Circuit, the Sixth and Ninth Circuits have
suggested, without directly ho lding, that a prisoner’s property interests are not affected by Sandin v. Conner. In Woo dard
v. Ohio Adult Parole Auth., 107 F.3d 1178, 11 82-83 (6th Cir. 19 97), rev’d on other grounds, 523 U.S. 272 , 118 S. Ct.
1244, 140 L.Ed .2d 3 87 (199 8), the S ixth Circuit noted that “the Supreme Co urt has made it clear [in Sandin v. Conner]
that both state law and the Due Pro cess Clause itself may create [a liberty] interest,” while “according to prevailing
doc trine, state law contro ls as to the existence of a p roperty interest.” The Ninth Circuit concluded in an unpublished
opinion that under Sandin v. Conner, a prisoner “had no liberty interest in his prison job,” but it ruled that the prisoner
had no property interest in his prison job because state law left the employment of prisoners to the discretion of prison
officials and the priso ner “failed to cite to any prison regulation which mandates a particular classification.” Martin v.
Upchurch, 67 F.3d 307, No. 93-16907, 1995 WL 563744, at *2, n. 2 (9th Cir. Sept. 13, 1995) (unpublished opinion).
On the other side of the debate, the Tenth Circ uit has expressly held that Sandin v. Conner’s atypical-and-significant-
deprivation rationale app lies to prope rty claims b y prisoners. Cosco v. Uphoff, 195 F.3d 12 21,1223 -24 (10th Cir. 1999).
The Seventh Circ uit has suggested , without d irectly holding, that San din v. Conner controls pro perty claims by prisoners.
Abdul-Wadood v. Nathan, 91 F.3d 102 3, 1025 (7th Cir. 1996); Logan v. Gillam, No. 94-3794, 96 F.3d 1450, 1996 WL
50861 8, at *3 (7th Cir. Aug. 29 , 199 6) (unpublished o pinion).

         10
            Although we are aware of autho rity to the co ntrary, i.e. Washlefske v. Winston, 234 F.3d 179 , 185 -86 (4 th
Cir. 20 00), cert denied 532 U.S. 983 , 121 S.Ct. 1627 (2001), we have determined that the better reasoned positio n is
that prisoners have a prop erty interest in the funds in their inmate trust acco unts. Singleton v. Page, No. 96-2637, 202
F.3d 274, 199 9 W L 1054 594, at *1 (7th Cir. Nov. 17, 1 999 ) (unpublished op inion); Schneider v. California Dep’t. of
Corr., 151 F.3d 119 4, 12 01 (9th Cir. 199 8); Hampton v. Hobbs, 106 F.3d 128 1, 12 87 (6th Cir. 199 7); Scott v. Angelone,
No. CV-90-00589-ECR, 980 F.2d 738, 1992 W L 354598, at *2 (9th Cir. Nov. 27, 1992) (unpublished op inion); Gillihan
v. Shillinger, 872 F.2d 935 , 939 (10th Cir. 1989 ); Campb ell v. Miller, 787 F.2d 217, 222 (7th Cir. 1986); Quick v. Jones,
754 F.2d 1521, 15 23 (9th Cir. 1985).

                                                             -7-
statutes or the Department’s policies provide otherwise.11 It follows, therefore, that Mr. Jeffries is
entitled to relief if the prison disciplinary board infringed upon his due process rights by failing to
follow the Uniform Disciplinary Procedures when it convicted him of larceny and ordered that $810
be deducted from his inmate trust fund account as restitution.

        Not every departure from the Uniform Disciplinary Procedures amounts to a due process
violation warranting relief through a writ of common-law certiorari. Tenn. Dep’t Corr. Policy No.
502.01(V) itself provides that “minor deviations” from the procedures that do not prejudice the
prisoner do not require dismissal of the disciplinary offense. To trigger judicial relief, a departure
from the Uniform Disciplinary Procedures must effectively deny the prisoner a fair hearing.

                                                      B.
                                           The $810 Restitution Order

         Based on our unanimous decision that Sandin v. Conner does not apply to orders depriving
prisoners of property interests, we proceed to the merits of Mr. Jeffries’s claims regarding the $810
restitution order. Mr. Jeffries asserts that he was denied due process in the hearing on the larceny
charge in two ways. First, he alleges that he did not receive twenty-four hours notice of the hearing
as required by Tenn. Dep’t Corr. Policy No. 502.01(VI)(A)(3)(c). Second, he alleges that the
disciplinary board would not permit him to present exculpatory evidence as permitted by Tenn. Dep’t
Corr. Policy No. 502.01(VI)(E)(2)(c)(6).

         The Department responds by asserting categorically that it afforded Mr. Jeffries all the
procedural safeguards to which he was entitled under the Uniform Disciplinary Procedures. It also
asserts that Mr. Jeffries waived his right to present exculpatory evidence. The Department supported
these claims in the trial court by filing (1) certified copies of the TOMIS disciplinary report and the
“Disciplinary Report Hearing Summary” for the November 29, 2000 hearing regarding Mr. Jeffries’s
larceny charge and (2) an affidavit prepared by the chairperson of the prison disciplinary board.12
We have determined that these materials do not support the Department’s arguments.




         11
             For instance, Tenn. Dep’t Corr. Policy No. 208 .01(VI)(J) states that “[i]nterest earned from trust fund
investments will only be utilized to purchase re creatio nal supplies that directly b enefit the m ajority of the inmate
pop ulation.” The Department may also require a prisoner to contribute toward the cost of his or her care in accordance
with Tenn. Co de A nn. § 4 1-21 -905 (Sup p. 20 01). Following a p risoner’s release, the Department will send the prisoner
a check for the b alance of his or her trust fund account after deducting any outstanding obligations. Tenn. Dep ’t Corr.
Policy No . 208 .01(VI)(F).

         12
            The admissibility and efficacy of this affidavit are open to question. In certiorari proceed ings, judicial review
is generally limited to the record developed by the tribunal below, and the tribunal is genera lly boun d by its own record.
In accordance with Tenn. Code Ann. § 27-9-111(b) (2000), parties may introduce additional evidence regarding fraud,
corruption, or whether the tribunal exceeded its jurisdictio n or o therwise acted illegally. Hemon tolor v. Wilson Coun ty
Bd. of Zoning App., 883 S.W .2d 6 13, 6 18 (Tenn. Ct. A pp. 1 994 ); Armstrong v. Board of Dir. of Fayette County Gen.
Hosp., 553 S.W .2d 77, 80 (T enn. Ct. Ap p. 19 76). Additional evidence regarding procedural irregularities that do not
appear in the tribunal’s record may also be intro duced. Bienz v. City of Dayton, 566 P.2d 904 , 922 (Or. C t. App. 197 7).
However, additional evidence may not be used to impeach or contradict matters reflected in the lower tribunal’s record
unless there is a claim that the reco rd does not accurately reflect the proceedings b efore the lower tribunal. See
Com monwealth v. Blose, 53 Pa. D. & C . 2d 106, 121 -22, 1971 W L 1424 2, at *10 (Pa. Com. Pl. 1971).

                                                             -8-
                                                       1.
                                           The Notice of the Hearing

        Tenn. Dep’t Corr. Policy No. 502.01(VI)(A)(3)(c) states that “[n]o disciplinary hearing shall
be held in less than twenty-four hours after the inmate has been charged with a disciplinary
infraction, unless a more prompt disposition is requested by the subject inmate and he/she waives
the right to a twenty-four (24) hour notice in writing.” The policy reflects the United States Supreme
Court’s conclusion that prisoners charged with disciplinary infractions are entitled to “no less than
24 hours” written notice prior to a disciplinary board hearing. Wolff v. McDonnell, 418 U.S. 539,
564, 94 S. Ct. 2963, 2979 (1974).

        The TOMIS disciplinary report involving the larceny infraction states that Mr. Jeffries was
provided written notice of the charge at 2:11 P.M. on November 28, 2000 and that he refused to sign
the report acknowledging that he received it. The Disciplinary Report Hearing Summary of the
November 29, 2000 hearing on the larceny infraction does not reflect the time that the hearing
convened. However, it contains a notation confirming that Mr. Jeffries was given the “offense
citation” on November 28, 2000. It also reflects that Mr. Jeffries did not waive his right to twenty-
four hours notice because (1) he did not sign the summary in the space provided acknowledging that
he waived this right and (2) the summary does not contain a notation by the chairperson that Mr.
Jeffries waived his right to notice.13 In fact, on the signature line for acknowledging a waiver of the
right to notice, someone, presumably the chairperson, wrote the word “given” in handwriting that
clearly differs from Mr. Jeffries’s signature.

        Because the Department does not insist that Mr. Jeffries waived his right to twenty-four hours
notice, the pivotal factual issue regarding Mr. Jeffries’s notice claim is whether the disciplinary
hearing on the larceny infraction commenced before or after 2:11 P.M. on November 29, 2000. By
asserting that he did not receive adequate written notice, Mr. Jeffries is necessarily asserting that the
hearing commenced before 2:11 P.M. Similarly, by asserting that Mr. Jeffries received the notice
required by the Uniform Disciplinary Procedures, the Department is necessarily asserting that the
hearing commenced after 2:11 P.M.

        Nothing in this record provides an authoritative basis for resolving this factual impasse. The
hearing summary does not state when the hearing commenced, and the chairperson’s affidavit is
equally silent on the point. With the evidence in equipoise, the trial court should have denied the
Department’s motion for summary judgment with regard to Mr. Jeffries’s notice claim because the
Department failed to demonstrate the absence of material factual disputes regarding the time when
the disciplinary hearing commenced.

                                              2.
                 The Waiver of the Opportunity to Present Exculpatory Evidence

        The Uniform Disciplinary Procedures also afford prisoners facing disciplinary charges with
a limited right to present exculpatory evidence. Tenn. Dept’s Corr. Policy No. 501.02(VI)(E)(2)

         13
           The chairp erson of a disc iplinary b oard has an affirmative obligation to inq uire whether the prisoner has
waived his or her right to twenty-four hours notice and to record the inmate ’s answer “in the findings of the board.”
Tenn. Dep ’t Corr. Policy No. 502.01(VI)(E)(2)(a)(1).

                                                          -9-
(c)(6) provides that “[t]he inmate shall be permitted to present the testimony of relevant witness(es),
unless allowing a witness to appear would pose a threat to institutional safety or order.” This policy
reflects the United States Supreme Court’s conclusion that prisoners charged with disciplinary
offenses “should be allowed to call witnesses and present documentary evidence in [their] defense
when permitting [them] to do so will not be unduly hazardous to institutional safety or correctional
goals.” Wolff v. McDonnell, 418 U.S. at 566, 94 S. Ct. at 2979.

        Mr. Jeffries asserts that he was deprived of due process by being prevented from calling
witnesses on his behalf and that he did not waive this right at the November 29, 2000 hearing. The
Disciplinary Report Hearing Summary reflects only that Mr. Jeffries declined to sign the written
acknowledgment that he had waived his right to call witnesses on his behalf.14 It does not reflect,
by notation of the chairperson or otherwise, that Mr. Jeffries orally waived his right to call witnesses
during the hearing. However, the chairperson of the disciplinary hearing board later prepared an
affidavit stating that “[i]nmate Jeffries initially requested to have witnesses present, but eventually
decided against calling any witnesses.” In response, Mr. Jeffries submitted his own affidavit
asserting that “[p]etitioner was not allowed to call any witnesses in his behalf, was denied the right
to present documentary proof of his innocence of the charges against him [Sworn Affidavit of Shelby
A. Frazier], and was threatened by the reporting official.”

        Tenn. Dep’t Corr. Policy No. 502.01(VI)(E)(2)(a) requires the chairperson of a prison
disciplinary board “in the findings of the board” the factual information regarding a prisoner’s waiver
of the procedural rights identified in Wolff v. McDonnell. This policy serves at least three beneficial
purposes. First, it provides definitive, persuasive evidence that will avoid factual disputes like this
one should a prisoner seek judicial review of the disciplinary board’s action.15 Second, it protects
the prisoner against collateral consequences stemming from a misunderstanding of the proceeding.
Third, it helps ensure that prison officials, faced with possible scrutiny by state officials, the public,
and the courts, will act fairly. Wolff v. McDonnell, 418 U.S. at 565, 94 S. Ct. at 2979.

        Making a record of this sort is not burdensome. The hearing summary form contains
preprinted waivers of the right to notice, the right to present exculpatory evidence, and the right to
have the reporting official present which need only be signed by the prisoner to acknowledge that
he or she has waived one or all of these rights. If the prisoner declines to sign the hearing summary
form acknowledging that he or she has waived one or more of these rights, the chairperson need only
record on the form that the prisoner waived the right but declined to sign the form.

       In this case, the chairperson of the prison disciplinary board did not comply with the
requirements of Tenn. Dep’t Corr. Policy No. 502.01(VI)(E)(2)(a). The only information in the
hearing summary regarding Mr. Jeffries’s larceny infraction is an ambiguous, handwritten statement

         14
          The signature line for acknowledging the waiver of this right contains a notation “refused to sign” in
handwriting that does not resemble Mr. Jeffries’s signature.

         15
            In the absence of an authoritative record, the reviewing courts have no practical avenue for resolving factual
disputes like the one involved in this case. Remanding the case to the trial court for further review of the reco rd will gain
little because cre dibility de terminations canno t be made on affidavits alone. It would be not only imprac tical but also
unwise to order the prisoner and the chairperson of the prison disciplinary board to appear personally to enable the trial
court to make a credibility determ ination. These practical constraints underscore the necessity of compliance with Tenn.
Dep’t Corr. Policy No. 502 .01(VI)(E)(2)(a)(3).

                                                            -10-
that Mr. Jeffries “refused to sign” the form. This notation is equally consistent with the inference
that Mr. Jeffries refused to sign the form because he refused to waive his right to call witnesses and
with the inference that he waived his right to call witnesses but nonetheless refused to sign the form.

       The Department’s Uniform Disciplinary Procedures place the onus on the chairperson to
make a contemporaneous record of a prisoner’s waiver of the fundamental rights identified in Wolff
v. McDonnell. The Department’s defenses to a prisoner’s petition for common-law writ of certiorari
must, therefore, stand or fall on the record its employees have prepared.16 Failure to adequately
document a prisoner’s waiver of one or more of these rights creates two related persuasive
inferences: first, that the prisoner did not waive his or her rights and second, that the prisoner was,
therefore, not afforded the rights purportedly waived.

        The ambiguous notation on the summary of the hearing on Mr. Jeffries’s larceny infraction
constitutes a failure to adequately document Mr. Jeffries’s purported waiver of his right to present
exculpatory evidence. In the absence of an adequate contemporaneous record of his waiver, we
conclude that the Department has not established its claim that Mr. Jeffries waived his right to
present exculpatory evidence. Therefore, the trial court erred by granting the summary judgment
dismissing Mr. Jeffries’s challenge to his conviction on the larceny infraction.

        We have also concluded that the record as it stands demonstrates that Mr. Jeffries is entitled
to a judgment as a matter of law. Failure to afford constitutionally protected rights to a prisoner
facing the loss of a property interest amounts to an illegality for the purpose of determining whether
relief pursuant to a common-law writ of certiorari is warranted. Because the Department failed to
prove that Mr. Jeffries waived his right to present exculpatory evidence, Mr. Jeffries’s claim that he
was prevented from presenting exculpatory evidence stands essentially unrebutted. Accordingly, he
has adequately demonstrated that the Department acted illegally by preventing him from presenting
exculpatory evidence. On remand, we direct the trial court to enter an order vacating the November
29, 2000 decision of the prison disciplinary board finding Mr. Jeffries guilty of the larceny infraction
and remanding the proceeding to the Department with directions either to dismiss the larceny charge
against Mr. Jeffries or to afford him a hearing consistent with the requirements of due process.

                                                     C.
                                    The Five Days in Punitive Segregation

        We must, as a final matter, address Mr. Jeffries’s challenge to the prison disciplinary board’s
decision to sentence him to five days in punitive segregation. Because we have determined that Mr.
Jeffries’s conviction on the larceny infraction must be vacated with regard to the $810 restitution
order, we unanimously find that the portion of the board’s order sentencing him to five days in


         16
          An after-the-fact affidavit providing more detailed information regarding a purported waiver than the
information appearing in the hearing summery does not cure the defect. It is contrary to Tenn. Dep’t Corr. Policy No.
502.01(VI)(E)(2)(a). In add ition, affidavits of this sort precipitate factual disp utes that are not easily reso lvable in a
commo n-law certiorari proceeding.

                                                           -11-
punitive segregation must likewise be vacated.17 A conviction of a disciplinary infraction that is
invalid for one purpose is invalid for all purposes. Therefore, on remand, we direct the trial court
to likewise vacate the board’s decision to sentence Mr. Jeffries to five days in punitive segregation
and to remand the proceeding to the Department for further proceedings consistent with this opinion.

                                                           V.

       We affirm the dismissal of Mr. Jeffries’s claims regarding his three guilty pleas, and we
reverse the dismissal of his claims regarding his conviction on the larceny disciplinary infraction.
We remand the case to the trial court with directions (1) to enter an order vacating the November 29,
2000 decision of the prison disciplinary board finding Mr. Jeffries guilty of the larceny infraction
and remanding and (2) to direct the Department either to dismiss the larceny disciplinary charge
against Mr. Jeffries or to afford him a hearing consistent with due process and the Uniform
Disciplinary Procedures. We also tax the costs of this appeal to the Tennessee Department of
Correction.


                                                                 _____________________________
                                                                 WILLIAM C. KOCH, JR., JUDGE




         17
            This panel’s decision regarding Mr. Jeffries’s sentence to five days in punitive segregation would have been
different had p unitive segregation be en the o nly punishment M r. Jeffries received. In that circum stance, Judges Cain
and Cottrell , relying on Judge Co ttrell’s majority opinion in Willis v. Tenn essee Dep’t. of Corr., would have concluded
that the trial court prop erly dismissed Mr. Jeffries’s claims regarding his five-day sentence in punitive segregation
because the sentence does not infringe upon his liberty interests. Judge Koch would have co ncluded that the trial court
erred by dismissing these claims for two reasons. First, the record contains a genuine dispute of material fact regarding
the adequacy of the notice Mr. Jeffries received of the hearing on the larcen y charg e. Second, the record does not
support the Department’s claim that Mr. Jeffries waived his right to present exculpatory evidence.



                                                          -12-
