TERRY COMPTON,               )
                             )        Davidson Chancery
    Plaintiff/Appellant,     )        No. 96-1782-II
                             )
VS.                          )        Appeal No.
                             )        01A01-9710-CH-00539
DONAL CAMPBELL, COMMISSIONER,)
TENNESSEE DEPARTMENT OF
CORRECTION,
                             )
                             )
                             )
                                                    FILED
    Defendant/Appellee.      )
                                                      April 24, 1998

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

     APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                   AT NASHVILLE, TENNESSEE

             HONORABLE CAROL L. McCOY, CHANCELLOR


Terry Compton, #77594
N.W.C.C.
Route 1, Box 660
Tiptonville, TN 38079
PRO SE/PLAINTIFF/APPELLANT

Sohnia W. Hong, #17415
Assistant Attorney General
Second Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243-0488
ATTORNEY FOR DEFENDANT/APPELLEE


                MODIFIED, AFFIRMED AND REMANDED.



                                 HENRY F. TODD
                                 PRESIDING JUDGE, MIDDLE SECTION




CONCUR:
BEN H. CANTRELL, JUDGE
WALTER W. BUSSART, JUDGE
TERRY COMPTON,               )
                             )                         Davidson Chancery
    Plaintiff/Appellant,     )                         No. 96-1782-II
                             )
VS.                          )                         Appeal No.
                             )                         01A01-9710-CH-00539
DONAL CAMPBELL, COMMISSIONER,)
TENNESSEE DEPARTMENT OF      )
CORRECTION,                  )
                             )
    Defendant/Appellee.      )



                                     OPINION

       This is an action by a prisoner in the custody of the Department of Correction challenging

disciplinary action resulting from his misconduct while in the status of minimum security. He

was transferred to medium security. His complaint is essentially that the Department is not

impartial in implementing its “policies” in regard to transferring prisoners from one “security

status” to another.



       The petitioner filed the usual petition for judicial review, and the Department moved to

dismiss for failure to state a claim for which relief can be granted. The Trial Court sustained the

motion, stating:

                       Petitioner has filed a declaratory judgment action
               seeking review of his 36 month medium custody
               classification that he received in March of 1996, as a result of
               a disciplinary report.

                       Petitioner alleges in his Complaint that he has been
               incarcerated since 1975. In September of 1994, Petitioner
               was assigned to the Nashville Community Service Center
               (NCSC) in a minimum custody level. In February of 1996,
               Petitioner received a Class “B” disciplinary report and was
               found guilty of such report in March of 1996. As a result of
               such finding, he was reclassified to a medium custody level
               pursuant to TDOC Policy 404.07§ VI(K)(1)(b) and
               transferred from NCSC to the Northwest Correctional Center.
               Petitioner has been informed by Respondent Tennessee
               Department of Correction (TDOC) that he will remain at
               medium custody level for 36 months. He asserts in his
               Complaint that, as long as he does not receive any additional
               disciplinaries, he should be reclassified to the minimum
               custody level at the expiration of 18 months pursuant to
               TDOC Policy Nos. 404.07§§ II&V, 401.05§ V, and 401.06 §
               V. He asserts that the TDOC’s reliance on 404.07 §

                                             -2-
VI(K)(1)(b) to extend his medium custody classification to 36
months is arbitrary and capricious, and a denial of his equal
protection and due process rights. He further asserts that
401.06 § VI(K)(1)(b) is “inoperable” because it conflicts with
other TDOC policies.

        Respondent Donal Campbell has filed a Motion to
Dismiss for failure to state a claim. For the reasons stated
herein, this Motion will be granted.

       First, while the UAPA does provide for declaratory
judgment review over state agency rules pursuant to T.C.A.
§ 4-5-224, this does not include TDOC policies applicable to
inmates only. T.C.A. § 4-5-102(10) defines a rule as follows:

       “Rule” means each agency statement of
       applicability that implements or prescribes law
       or policy or describes the procedure or
       practice requirements of an agency. “Rule”
       includes the amendment or repeal of a prior
       rule, but does not include:

               (A) Statements concerning only
               the internal management of
               state government and not
               affecting private rights,
               privileges, or procedures
               available to the public...

Because TDOC prisoner policies do not affect rights and
privileges available to the general public, they are not “rules”
subject to a declaratory action under the UAPA. Mandela v.
Reynolds, No. 01A01-9004-CH-00139 (Tenn. App. Dec. 5,
1990); Na’im v. Reynolds, No. 01A01-9003-CH-00114 (Tenn.
App. June 6, 1990). Accordingly, this Court has no
jurisdiction over the policy Petitioner is challenging.
Petitioner’s amendment to his Complaint to provide that all
references to TDOC policy were “intended to be a reference
to the State of Tennessee Regulation containing any similar
number to that of the policy mentioned and from which the
cited policy was developed” does not save Petitioner’s
Complaint because there are no such regulations.

        Even if this Court had jurisdiction over TDOC
policies, Petitioner has failed to state a claim. In order to
prevail on his due process claim, Petitioner must assert that he
has been deprived of a liberty interest entitled to due process
protection. In Sandlin v. Conner, 115 S. Ct. 2293, 2300 132
L.Ed. 2d 418 (1995), the Supreme Court held that only those
administrative actions which impose “a typical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life” are subject to due process scrutiny. A
reclassification to medium custody from minimum custody is
not such a hardship and is therefore not subject to due process
protection.



                              -3-
                         Petitioner’s other claims regarding the additional 18
                 months medium security classification are also without merit.
                 Petitioner alleges that he is entitled to an automatic reduction
                 to a minimum custody level at the expiration of 18 months
                 (absent further disciplinary actions) by virtue of 401.06 § V
                 which requires that the CAF score be used to determine
                 custody classification unless there is an “authorized override”
                 of the CAF score. However, 404.07 § VI(K)(1)(b), which
                 specifically deals with minimum custody classification and
                 was adopted after the above referred 401.06 § V CAF score
                 policy, states that a prisoner is not eligible for minimum
                 custody classification for 36 months after a Class A or B
                 disciplinary infraction. Petitioner’s disciplinary action was a
                 Class B infraction. Thus, Petitioner is not entitled to the CAF
                 derived minimum custody level for at least 36 months.

                         For the reasons stated above, Respondents Motion to
                 Dismiss will be granted. Litigation costs are taxed to
                 Petitioner, and all other costs are waived.



          TCA § 4-5-224(a) states that a reviewing court may enter a declaratory judgment if it is

determined that a statute, rule, order or its application interferes with or threatens to impair legal

rights.



          TCA §§ 41-21-202 and 504 confer upon the Department the discretion to create and

administer a prisoner classification system. McCloud v. Bradley, Tenn. App. 1986, 724 S.W.2d

362. TCA § 4-5-102(10), quoted by the Trial Judge above, states that a “rule” does not include

                 (A) statement concerning only the internal management of
                 state government and not affecting private rights, privileges,
                 or procedures available to the general public.


          The “policies” of the Corrections Department are “statements concerning only the

internal management of the Department” and do not affect private rights, privileges or

procedures available to the general public.



          The “Security Status” of prisoners incarcerated in an institution controlled by the

Department of Correction is determined by the “policies” of the Department on a prisoner-by-

prisoner basis. Each prisoner is an individual, and his “Security Status” is determined by a

determination of the security risk represented by each individual prisoner. Members of the

                                                 -4-
general public are not subject to such individual evaluation. Therefore, by statute, the policies

controlling such evaluations of prisons are not rules subject to judicial review.



          Such individual evaluation and disciplinary procedures do not involve a liberty interest

of constitutional proportions. Sandin v. Conner, 515 US 472, 115 S.Ct. 2293, 132 L.Ed 2d 418

(1995).



          The judgment of the Trial Court is modified to require the petitioner to pay all Trial Court

costs. As modified, the judgment of the Trial Court is affirmed. Costs of this appeal are taxed

against the appellant. The cause is remanded to the Trial Court for collection of costs accrued

in that Court.



                     MODIFIED, AFFIRMED AND REMANDED.




                                         ___________________________________
                                         HENRY F. TODD
                                         PRESIDING JUDGE, MIDDLE SECTION




CONCUR:



_____________________________
BEN H. CANTRELL, JUDGE


_____________________________
WALTER W. BUSSART, JUDGE




                                                  -5-
