                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                           Assigned on Briefs February 22, 2002

                   TONY MAKOKA v. HOWARD COOK, ET AL.

                    Appeal from the Chancery Court for Davidson County
                      No. 00-3870-III   Ellen Hobbs Lyle, Chancellor



                   No. M2001-01013-COA-R3-CV - Filed December 5, 2002


An inmate filed a pleading in the chancery court complaining his parole hearing had been delayed
because the Department of Correction misapplied a statute and misclassified him as close custody
by improperly convicting him of disciplinary infractions and/or assigning too many custody points
for a federal immigration detainer warrant. We affirm the decision of the trial court.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
joined. WILLIAM C. KOCH , JR., J., filed a concurring opinion.

Tony Makoka, Oakdale, Louisiana, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Stephanie
R. Reevers, Associate Deputy Attorney General, for the appellee, Howard Cook, et al.

                                             OPINION

        This case began with the filing by Mr. Makoka of a “parole certification complaint.” In that
pleading Mr. Makoka alleged that in July 1998 he met with the Board of Paroles and his next hearing
was set for July 2000. He was not granted that hearing because, he alleges, he had been placed in
“close custody” classification due to either disciplinary proceedings in August and September of
1999 or to a miscalculation of his custody “points” resulting from an immigration detainer or both.
He also claims Department officials incorrectly interpreted the statute regarding their certification
of parole eligibility. In addition to the delay in his parole consideration, he claims that the
classification into the close custody level removed him from his job and resulted in his transfer from
the minimum security facility in which he had been housed.

        Mr. Makoka “emphatically” stated in his complaint that he was not suing because of a denial
of parole and was not arguing or claiming such denial as a basis for relief. While this is technically
accurate, because he was not denied parole in July of 2000, his filings make clear that his primary
complaint is that he was denied the opportunity for parole because he was not certified by the
Department to the Board of Paroles and did not have a parole hearing in July of 2000.

        His requests for relief demonstrate this. Among other things, he asked that the Department
be required to correct the erroneous assignment of a misdemeanor detainer as a felony, then correct
his classification score and properly classify him, expunge his record that he was classified as close
custody, and certify him for a parole grant hearing. He also requested that the Department remove
and expunge the disciplinary convictions and immediately restore lost sentence credits and earnings
from his job he lost as a result of the disciplinary infractions.

         By the time Mr. Makoka filed his notice of appeal, his address had changed to a federal
detention center in Louisiana, and that is the address appearing on filings in this court. In their brief
herein, the defendants stated Mr. Makoka had “apparently” met the parole board and been released
from the custody of the Department. In his reply brief, Mr. Makoka confirms the situation by
acknowledging that he has been released from custody of the Department and is on parole. Thus,
it is the delay in his appearance before the parole board, which Mr. Makoka describes as from July
2000 to April 2001, that is the crux of his complaint.

        Prisoners do not have an absolute right to be released from confinement prior to the
expiration of their sentence. Graham v. State, 202 Tenn. 423, 426, 304 S.W.2d 622, 623-24 (1957);
Robinson v. Traughber, 13 S.W.3d 361, 364 (Tenn. Ct. App. 1999); Tarpley v. Traughber, 944
S.W.2d 394, 395 (Tenn. Ct. App. 1996). Thus, parole is a privilege and not a right. Tenn. Code
Ann. §§ 40-28-117(a), 40-35-503(b); Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478, 482
(Tenn. 1997). Whether a prisoner should be granted parole is a decision entrusted to the Board, not
the courts. State ex. rel. Ivey v. Meadows, 216 Tenn. 678, 685, 393 S.W.2d 744, 747 (1965); Rucker
v. State, 556 S.W.2d 774, 776 (Tenn. Crim. App. 1977).

        Because no prisoner has a constitutional or inherent right to be conditionally released before
the expiration of a valid sentence, Greenholtz v. Inmates of the Neb. Penal and Corr. Complex, 442
U.S. 1, 7-8, 99 S. Ct. 2100, 2104 (1979), a prisoner has no constitutionally-protected liberty interest
in parole. Tenn. Code Ann. § 40-35-503(b); Wright v. Trammell, 810 F.2d 589, 591 (6th Cir. 1987);
Kaylor v. Bradley, 912 S.W.2d 728, 733 (Tenn. Ct. App. 1995). Without such an interest, due
process does not attach. Consequently, any claim by Mr. Makoka that the delay in his parole hearing
was a denial of due process must fail.

       According to Mr. Makoka the delay was caused by misclassification and by a
misinterpretation of Tenn. Code Ann. § 40-35-501(l)(1), which provides:

        The department of correction shall not certify an inmate for a parole grant hearing,
        other than an initial grant hearing, if, at the time the department of correction would
        have otherwise certified the inmate as eligible, the inmate is classified as close



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        custody. Such decertification shall continue for the duration of such classification,
        and for a period of one (1) year thereafter.

         As we interpret Mr. Makoka’s argument, he would have been certified to the parole board,
according to the Department’s customary practice, any time within ninety (90) days of the hearing
scheduled for July 2000. He was placed in close custody classification as a result of incidents in
August and September of 1999. In his brief, he states that he was reclassified from close to medium
custody on January 12, 2000. He argues that because he was no longer classified as close custody
at the time the Department would have ordinarily certified him, the Department misinterpreted or
violated the statute.

        We cannot agree. Mr. Makoka’s argument ignores the second sentence of the provision,
which clearly extends the period of ineligibility for certification for parole consideration for one year
beyond the end of the close custody classification. Thus, Mr. Makoka would not have become
eligible for a parole hearing until after January 12, 2001.

         Mr. Makoka also argues that, even if the Department applied Tenn. Code Ann. § 40-35-
501(l) correctly, he should not have been classified close custody in the first place. Classification
of prisoners is a matter largely within the discretion of prison officials. A prisoner has no right to
any particular security classification level. Olim v. Wakinekona, 461 U.S. 238, 245, 103 S. Ct. 1741,
1745 (1983); Montayne v. Haymes, 427 U.S. 236, 242-43, 96 S. Ct. 2543, 2547 (1976); Beard v.
Livesay, 798 F.2d 874, 876 (6th Cir. 1986). Thus, prisoners generally do not have a due process
liberty interest in their placement and classification while incarcerated. See Moody v. Daggett, 429
U.S. 78, 88 n.9, 97 S. Ct. 274, 279 n.9 (1976).

        State statutes give the Department wide discretion in its classification of prisoners. Tenn.
Code Ann. § 41-21-202; McCloud v. Bradley, 724 S.W.2d 363, 366 (Tenn. Ct. App. 1986). “A state
prison inmate has no right to a particular classification under state law, and prison officials must
have broad discretion, free from judicial intervention, in classifying prisoners in terms of their
custodial status.” Jaami v. Conley, 958 S.W.2d 123, 125 (1997) (quoting 60 AM . JUR. 2D Penal and
Correctional Institutions § 34 (1979)). Consequently, Mr. Makoka has failed to state a claim for
deprivation of due process.

        Mr. Makoka alleges two reasons why he should not have been on close custody. His first
claim is that the calculation of his “points” resulting in his reclassification was incorrect. He
explains the relationship of the disciplinary convictions and the basis for his dissatisfaction with the
calculation:

        Prior to coming to MTRC plaintiff had a perfect record, his points were -4. The
        written warning [from one disciplinary conviction] was a class “C” which gave him
        3 points, the solicitation of staff charge was a class “A” resulting in 7 points, and then
        he was given 4 more points for receiving two write-ups within a month. Finally, he



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        also received 5 points for an immigration misdemeanor detainer that mysteriously
        surfaced.

         His problem with the points awarded for the detainer warrant is that the Department assessed
5 points as if it were a felony, instead of the 3 points assignable for a misdemeanor which he asserts
is the usual policy. He alleged he was informed by the director of classification that all immigration
detainers are considered serious and are treated as felonies. The result of these extra two points,
according to Mr. Makoka, was to place him in the close custody range instead of in the medium
range. His primary complaint is that he was given too many points for a federal detainer warrant.
We find no authority for this proposition. Statute and case law clearly give the Department
discretion to evaluate the security classification of each prisoner. Taking as true Mr. Makoka’s
allegations, his complaint comes down to the fact that Department officials treated a federal or
immigration detainer seriously. We find no basis in the law for a claim against the Department or
the individual defendants based on that alleged conduct.

        Secondly, Mr. Makoka claimed that the disciplinary proceedings were the result of retaliation
by a correctional officer because Mr. Makoka had previously filed a grievance against her. His
complaint argues the merits of his disciplinary convictions, as does his brief on appeal. He also
claims the convictions were obtained in violation of due process.

        In order to argue that he was improperly classified because of his disciplinary convictions,
Mr. Makoka must challenge the validity of those proceedings. As the trial court found, the proper
method for challenging a prison disciplinary board decision is by common law writ of certiorari.
Rhoden v. State Dep’t of Corr., 984 S.W.2d 955, 956 (Tenn. Ct. App. 1998); Bishop v. Conley, 894
S.W.2d 294, 296 (Tenn. Crim. App. 1994). Such actions must be brought within sixty (60) days of
the decision complained of. Tenn. Code Ann. § 27-9-102. This time period is jurisdictional.
Thandiwe v. Traughber, 909 S.W.2d 802, 804 (Tenn. Ct. App. 1994). Mr. Makoka did not initiate
this lawsuit until well over a year after the disciplinary board decisions which contributed to his close
custody classification. Consequently, we affirm the trial court’s dismissal of claims relating to the
disciplinary proceedings.

       In his brief, Mr. Makoka argues that the trial court was wrong in this regard because he was
not seeking review of the disciplinary proceedings and decisions, but was instead suing defendants,
who he says did not administer discipline against him, for conspiring against him, presumably to
delay his parole hearing. His brief states:

        The appellant makes a clear distinction between the disciplinaries and the
        classification matters and as a matter of emphasis, states that he did not seek
        disciplinary review with the Chancery Court, but sought review of the state statute
        and its employment against the appellant which resulted in damages to him.




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        Notwithstanding this declaration, he further asserts that the defendants acted to conspire
against him “under the color of their offices and in their individual capacity.” To the extent this can
be interpreted as a claim under 42 U.S.C. § 1983, Mr. Makoka’s claim must still be dismissed.1

       Challenges to the procedures used in a prison disciplinary hearing are not cognizable under
§ 1983 if a judgment in favor of the prisoner would imply that the prisoner’s conviction and
punishment were invalid. Edwards v. Basilok, 520 U.S. 641, 117 S. Ct. 1584 (1997); see also Heck
v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994) (holding that recovery of damages for actions
whose unlawfulness would render a conviction or sentence invalid requires proof that the conviction
or sentence has been reversed, expunged, or declared invalid). Often called the “favorable
termination” rule, Heck and Balisok establish that when a state prisoner files a claim under 42 U.S.C.
§ 1983, and the effect of his claim if successful would necessarily imply the invalidity of a prior
administrative hearing, the prisoner does not have a viable § 1983 claim. Edwards, 520 U.S. at 645;
Heck, 512 U.S. at 486-87.

        In Huey v. Stine, 230 F.3d 226, 230 (6th Cir. 2000), the court applied the “favorable
termination” rule in upholding dismissal of a 42 U.S.C. § 1983 action alleging a correctional
officer’s actions in assaulting an inmate and filing a false misconduct report about the incident,
which resulted in disciplinary sanctions against the inmate, were cruel and unusual punishment. The
Sixth Circuit stated it had previously applied the Heck/Edwards doctrine generally to prevent a
prisoner found guilty in a prison disciplinary hearing from using § 1983 to collaterally attack the
hearing’s validity. 230 F.3d at 228-229. After review of intervening case law, the Sixth Circuit
reaffirmed its prior holdings and stated:

         In order to grant the plaintiff in this case the relief that he seeks, we would have to
         unwind the judgment of the state agency.

Id. 230 F.3d at 230; see also Williams v. Wilkinson, Nos. 01-3082 & 01-3234, 2002 US App. LEXIS
23774, at *13-*15 (6th Cir. Nov. 15, 2002). The court declined to do so.

        In the case before us, Mr. Makoka does, in fact, argue that the disciplinary convictions were
invalid. To grant him relief as to any individual defendants because of their role in those
proceedings would require an examination of the validity of those proceedings. Not only has Mr.
Makoka failed to show that his disciplinary convictions were set aside, he has failed to challenge
those convictions in a timely manner. It is now too late to do so, and he cannot use the instant
lawsuit to bring claims that are precluded as time-barred.




         1
            The disciplinary convictions occurred in August and September of 1999. Mr. Makoka’s complaint was not
filed until Decemb er of 2000. Thus, the complaint was filed beyond the one-year statute of limitations applicable to 42
U.S.C. § 198 3 actions. See Tenn. Code Ann. § 28-3-104; Doe v. Sullivan County, 956 F.2d 54 5, 552 (6th Cir. 1992);
Ho lt v. Young, No. M2 000-002 43-CO A-R3-CV , 2001 T enn. App. LEX IS 793, at *7 (Tenn. Ct. App. Oct. 25, 200 1) (no
Tenn. R. A pp. P . 11 application filed ).

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        For the reasons set out above, we affirm the trial court’s dismissal of the complaint. Costs
of the appeal are taxed to the appellant, Tony Makoka.



                                                      ___________________________________
                                                      PATRICIA J. COTTRELL, JUDGE




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