                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                      March 2000 Session

               HENDERSON KELLY v. SOUTH CENTRAL
            CORRECTIONAL FACILITY DISCIPLINARY BOARD

                 Direct Appeal from the Chancery Court for Wayne County
                         No. 10240    Robert L. Jones, Chancellor



                     No. M1999-02083-COA-R3-CV - Filed July 19, 2000


Petitioner, Henderson Kelly, appeals the action of the trial court in granting a Tennessee Rule of
Civil Procedure 12.02(6) motion to dismiss his petition for a writ of certiorari requesting review of
an agency decision. We affirm the action of the trial judge.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S., and
PATRICIA J. COTTRELL, J., joined.

Henderson Kelly, Whiteville, Tennessee, Pro Se.

Tom Anderson, Jackson, Tennessee, for the appellee, South Central Correctional Facility
Disciplinary Board.

                                            OPINION

        Petitioner, Henderson Kelly, is an inmate lawfully in the custody of the Tennessee
Department of Corrections and incarcerated at South Central Correctional Facility in Clifton,
Tennessee. He was charged with violating Tennessee Department of Correction (“T.D.O.C.”) policy
whereby a drug screen had a “positive” outcome. At a June 2, 1998 disciplinary hearing, he pleaded
guilty to the charge and received sixty days punitive segregation which was suspended. He further
received a fine of $4.00 together with four months package restriction, six months visitation
suspension, and $20.00 to be paid in restitution. Mr. Kelly petitioned the court for certiorari
claiming that the T.D.O.C.’s policy and the procedure in this case were denials of due process. We
find that the trial court correctly granted the motion to dismiss in this case.

        From a federal standpoint, this matter is clearly governed by Sandin v. Conner, 515 U.S. 472
(1995), and its progeny. In construing Sandin, the United States District Court for the Western
District of Tennessee held as follows:
       Sandin returned to the question [of] whether inmates even have a liberty interest in
       freedom from segregation, punitive or administrative. The [Supreme] Court . . .
       concluded that they do not.

              The time has come to return to the due process principles we believe
              were correctly established and applied in Wolff and Meachum.
              Following Wolff, we recognize that States may under certain
              circumstances create liberty interests which are protected by the Due
              Process Clause. But these interests will be generally limited to
              freedom from restraint which, while not exceeding the sentence in
              such an unexpected manner as to give rise to protection by the Due
              Process Clause of its own force, . . . nonetheless imposes atypical and
              significant hardship on the inmate in relation to the ordinary incidents
              of prison life.
                       [The prisoner] asserts, incorrectly, that any state action taken
              for a punitive reason encroaches upon a liberty interest under the Due
              Process Clause even in the absence of any state regulation. . . . We
              hold that [the prisoner’s] discipline in segregated confinement did not
              present the type of atypical, significant deprivation in which a state
              might conceivably create a liberty interest. . . . We hold, therefore,
              that neither the Hawaii prison regulation in question, nor the Due
              Process Clause itself, afforded [the prisoner] a protected liberty
              interest that would entitle him to the procedural protections set forth
              in Wolff. The regime to which he was subjected as a result of the
              misconduct hearing was within the range of confinement to be
              normally expected for one serving an indeterminate term of 30 years
              to life.

               Sandin thus focuses not on the content of regulations, but on the “nature of
       the deprivation” visited upon the inmate. Absent “atypical and significant hardship,”
       a change in the conditions of confinement simply does not inflict a cognizable injury
       that merits constitutional protection, regardless of the motivation of the official when
       making the change. Thus language in state laws or prison regulations no longer
       creates a liberty interest protected by the Due Process Clause. Rimmer-Bey v. Brown,
       62 F.3d 789, 790-91 (6th Cir. 1995). Rather, from now on, when analyzing due
       process claims federal courts look neither to state laws or regulations to ascertain
       whether they create a liberty interest in connection with a housing assignment,
       imposition of administrative or disciplinary segregation, reclassification, job
       assignment, or a prison transfer, nor to the subjective motives of prison officials for
       effecting such changes. Instead, the Court focuses on the nature of the deprivation
       itself.

Rienholtz v. Campbell, 64 F. Supp.2d 721, 728-29 (W.D. Tenn. 1999) (citations omitted) (quoting
Sandin v. Conner, 515 U.S. 472, 484-87 (1995)), aff’d, 198 F.3d 247 (6th Cir. 1999).

                                                 -2-
       In its opinion, the district court goes on to explain the impact of the Sandin case. The court
quotes the case of Orellana v. Kyle as follows:

       After [Sandin], prisoners may no longer peruse state statutes and prison regulations
       searching for the grail of limited discretion. Instead, a prisoner has a liberty interest
       only in “freedom[s] from restraint . . . impos[ing] atypical and significant hardship
       on the inmate in relation to the ordinary incidents of prison life.”

Rienholtz, 64 F. Supp.2d at 729 (quoting Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995)). The
district court further states that, “[a]ccording to Orellana, only deprivations that clearly impinge on
the duration of confinement, will henceforth even possibly qualify for constitutional “liberty”
status.” Id. (emphasis in original).

        In this case there is no showing that the Disciplinary Board acted illegally, fraudulently, or
arbitrarily, nor that it has exceeded its jurisdiction. The common law writ of certiorari cannot be
used to review the Board’s judgment on law or fact. Henry v. Board of Claims, 638 S.W.2d 825
(Tenn. Ct. App. 1982).

        The judgment of the trial court is in all respects affirmed and costs are assessed against the
petitioner.



                                               __________________________________________
                                               WILLIAM B. CAIN, JUDGE




                                                 -3-
