                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                           Assigned on Briefs June 13, 2011

          MICHAEL D. WILLIAMS v. GEORGE M. LITTLE ET AL.

                Appeal from the Chancery Court for Hickman County
                       No. 08104C    Jeffrey S. Bivins, Judge


              No. M2010-02241-COA-R3-CV - Filed September 13, 2011


Inmate filed a petition for writ of certiorari challenging his conviction of the prison
disciplinary offense of conspiracy to violate state law. The chancery court considered the
merits of the inmate’s petition and granted the defendants’ motion to dismiss. We affirm.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which F RANK G. C LEMENT, J R.
and R ICHARD H. D INKINS, JJ., joined.

Michael D. Williams, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Bill Young, Solicitor General; and
Arthur Crownover II, Senior Counsel; for the appellees, Tennessee Department of
Correction, George Little, James Fortner, Nicky Jordan, Tony Parker, Roger Hemby, Mark
Turney, Scott Miller, Jerry Cotham, Gregory Addington, Sgt. Woods and Capt. Toole.

                                        OPINION

                        F ACTUAL AND P ROCEDURAL B ACKGROUND

       Michael D. Williams is an inmate in the custody of the Tennessee Department of
Correction (“TDOC”). During the relevant time period, he was incarcerated at the Turney
Center Industrial Prison in Only, Tennessee.

        On December 5, 2007, Williams was charged with the disciplinary infraction of
conspiracy to violate state law, in particular Tenn. Code Ann. § 39-16-201, which prohibits
the introduction or possession of contraband in penal institutions. The disciplinary report
describes the offense as follows:
      An investigation into introduction of narcotics and contraband has been
      conducted by the Tennessee Department of Correction Division of Internal
      Affairs special agents. The results of this investigation is that on November
      28, 2007 agents [seized] 12 pounds of tobacco, 15.7 ounces of marijuana, 5
      cellular phones, DVD’s, CD’s, lighters, rolling papers, cell phone chargers,
      wave caps and various cosmetics that were delivered by a former CCA
      employee named Wendy Strange to Tricor Farm Mgr. Rodney Hemby.
      According to statements secured from Hemby this operation was at the
      direction of inmate Michael Williams 101154 an inmate at Turney Center
      Industrial Prison. Mr. Hemby has admitted that he was instructed to hide the
      items on a Tricor milk truck and to deliver these items to Williams within the
      confines of Turney Center prison. Mr. Hemby was arrested by special agents
      for his part in this criminal act. Due to this I am charging Mike Williams
      101154 with CVS 39-16-201.

The reporting staff person and preparer of the report was Sergeant Nicky Jordan.

       A hearing was held on December 12, 2007 before a three-member disciplinary board.
Williams pled not guilty and signed a waiver of his right to call witnesses on his behalf.
According to the hearing summary signed by all three board members, Williams stated that
there was no evidence presented “to hook inmate Williams with Mr. Hemby” and that
Williams did not “know Mr. Hemby or a Wendy Strange.” The description of the physical
evidence presented is as follows: “evidence #723180 presented by Sgt. Jordan (see CR-1831)
plus testimony of Sgt. Jordan.” Sergeant Jordan’s testimony is summarized in the report as
follows:

      Received call concerning a Tri-Cor employee. Special Agent Scott Miller told
      Sgt. Jordan that an assortment of items was to be brought into Turney Center
      for inmate Williams #101154. The Tri-Cor employee was Mr. Hemby, he
      made statements that Mr. Hemby had done this before. Mr. Hemby along with
      Wendy Strange was providing items via the Tri-Cor milk truck to inmate
      Williams. Mr. Hemby identified inmate Williams as the person who was to
      receive the items.

      Inmate Williams asked Sgt. Jordan about the criminal investigation. Sgt.
      Jordan tried to explain that he is limited to what he knew about the
      investigation. Special Agt. Miller spoke with Sgt. Jordan identifying inmate
      Williams by Mr. Hemby as the person who was to receive the items. Mr.
      Hemby did admit he had brought items to inmate Williams on 3 different
      times.

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      The disciplinary board found Williams guilty based on the investigation “where
Special Agent Miller named state employee Mr. Hemby [who] named I/M Williams.” The
punishment was a $5 fine, 30 days punitive, and loss of 180 PSRC days.

    Williams appealed the disciplinary board decision to the warden and then to TDOC
Commissioner.1 Both appeals were denied.

       On April 9, 2008, Williams filed a petition for writ of certiorari seeking review of the
actions of the disciplinary board. After considering the briefs of both parties, the trial court
entered an order on October 5, 2010, dismissing Williams’s petition on the grounds that he
“failed to show that the board acted illegally, fraudulently, or arbitrarily.”

                                         S TANDARD OF R EVIEW

        The scope of review with respect to a common law writ of certiorari is limited.2 Watts
v. Civil Serv. Bd., 606 S.W.2d 274, 276 (Tenn. 1980); Leonard Plating Co. v. Metro. Gov’t
of Nashville & Davidson County, 213 S.W.3d 898, 903 (Tenn. Ct. App. 2006). A reviewing
court may grant relief only when the board or agency has exceeded its jurisdiction or acted
illegally, arbitrarily, or fraudulently. Tenn. Code Ann. § 27-8-101; McCallen v. City of
Memphis, 786 S.W.2d 633, 638 (Tenn. 1990). The scope of review by the appellate courts
is no broader than that of the chancery court in these cases with respect to evidence presented
before the board. Watts, 60 S.W.2d at 277.

        Reviewing a common law writ of certiorari “does not extend to a redetermination of
the facts found by the board or agency whose decision is being reviewed.” Leonard Plating,
213 S.W.3d at 903. Courts are not permitted to “(1) inquire into the intrinsic correctness of
the decision, (2) reweigh the evidence, or (3) substitute their judgment for that of the board
or agency.” Id. at 903-04 (citations omitted). Rather, the courts must review the board’s
decision to determine whether there is any material evidence to support the decision; “a
decision without evidentiary support is an arbitrary one.” Id. at 904. The determination of
whether the board’s decision is supported by material evidence is a question of law. Id. To
support a board’s decision, the material evidence “must exceed a scintilla of evidence but
may be less than a preponderance of the evidence.” Id.

        1
        Although the official administrative record filed by the TDOC does not include any appeal
documents, exhibits attached to Williams’ petition for certiorari suggest that he appealed the decision to the
warden and to the TDOC commissioner.
        2
          While Williams petition cites both common law and statutory writs of certiorari, the common law
writ of certiorari is the only available vehicle for review of a prison disciplinary proceeding. See Robinson
v. Clement, 65 S.W.3d 632, 634 n.1 (Tenn. Ct. App. 2001).

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                                           A NALYSIS

        Williams makes two main arguments on appeal: (1) that the trial court erred in finding
that his brief was untimely; and (2) that the disciplinary board exceeded its jurisdiction and
acted illegally, fraudulently, and arbitrarily.

                                               (1)

        In an order entered on May 12, 2009, the trial court stated that the petitioner had 30
days from the respondents’ filing of a certified copy of the record to file and serve a brief.
We need not delve into the issue of whether Williams timely filed his brief in accordance
with this order because in its October 2010 order of dismissal, the court specifically stated
that, although the petitioner’s brief was untimely filed, the court considered the petitioner’s
brief and decided the case on its merits. Thus, Williams was not in any way prejudiced by
the finding of untimeliness. See Tenn. R. App. P. 36(b).

                                               (2)

        Williams bases his position that the disciplinary board exceed its jurisdiction and acted
illegally, fraudulently, or arbitrarily upon several separate arguments, which we consider in
turn.

        First, Williams asserts that there was no evidence to support his conviction. He cites
the Uniform Disciplinary Procedures (“UDP”), which are intended to “provide for the fair
and impartial determination and resolution of all disciplinary charges placed against
inmates.” TDOC Policy No. 502.01(II). Although the UDP does not give inmates due
process guarantees greater than those that are constitutionally required, deviations from the
UDP may warrant judicial relief if the inmate can show “substantial prejudice as a result and
that the error would have affected the disposition of the case.” TDOC Policy No. 502.01(V);
see Willis v. Tenn. Dep’t of Corr., 113 S.W.3d 706, 713 (Tenn. 2003). In other words, the
departure from the UDP must “effectively deny the prisoner a fair hearing.” Jeffries v. Tenn.
Dep’t of Corr., 108 S.W.3d 862, 873 (Tenn. Ct. App. 2002).

        Unlike in a court of law, a prison disciplinary infraction need only be proven by a
preponderance of the evidence. TDOC Policy No. 502.01(VI)(L)(4)(c)(1). And, on a writ
of certiorari, this court must affirm the board’s decision “if there is any material evidence to
support it.” Pirtle v. Tenn. Dep’t of Corr., No. W2006-01220-COA-R3-CV, 2007 WL
241027, at *5 (Tenn. Ct. App. Jan. 30, 2007) (citing Watts, 606 S.W.2d at 276-77). Williams
essentially argues that the testimony of Sgt. Jordan could not be substantiated and that Sgt.
Jordan presented no supporting evidence. Under the UDP, however, the disciplinary board

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“shall consider all evidence which it finds to be reliable, whether or not such evidence would
be admissible in a court of law.” TDOC Policy No. 502.01(VI)(L)(4)(c)(2). Thus, the
disciplinary board can base its decision on hearsay if the evidence is deemed reliable. See
Shaffer v. Tenn. Dep’t of Corr., No. M2010-01742-COA-R3-CV, 2011 WL 1842971, at *3
(Tenn. Ct. App. May 12, 2011); Patterson v. Tenn. Dep’t of Corr., No. W2009-01733-COA-
R3-CV, 2010 WL 1565535, at *6 (Tenn. Ct. App. Apr. 20, 2010). According to the hearing
summary, the board was presented with an item of evidence in addition to the testimony of
Sgt. Jordan.

       In light of Sgt. Jordan’s testimony regarding the findings of the investigation by
Special Agent Scott Miller, we must conclude that there is some material evidence to support
the decision of the disciplinary board. As stated above, it is not within this court’s scope of
review to evaluate the correctness of the board’s decision or reweigh the evidence. Leonard
Plating, 213 S.W.3d at 903-04.

        Williams’ second assertion is that the hearing summary is “false and inaccurate” and
that he was not given the opportunity to cross-examine the reporting official. Under the
UDP, the disciplinary board is required to render a CR-1834, or hearing summary, “stating
detailed reasons” for the decision and “summarizing the evidence which led to such
decision.” TDOC Policy No. 502.01(VI)(L)(4)(n)(5). Williams objects that the hearing
summary provided does not adequately reflect the testimony of Sgt. Jordan, who allegedly
stated, “I can’t answer any questions concerning this case because I don’t know and I have
not investigated any aspect of the case.” The summary does, however, contain a similar
statement: “Sgt. Jordan tried to explain that he is limited to what he knew about the
investigation.” Williams further objects that the summary contains only limited information
about the investigation. According to the summary, the board based its decision on the
information obtained during the investigation that Mr. Hemby was a state employee who
brought contraband into the prison, and that Mr. Hemby identified Williams as a prisoner to
whom he brought the contraband items. Williams has not identified any false or inaccurate
statements in the hearing summary, and we find that it complies with UDP requirements.

        As Williams clarifies in his reply brief, his real complaint is that he was denied the
right to cross-examine his accuser and to review all adverse documentation. The crux of his
position here is that he should have been allowed to confront the original source of the
information from the investigation, presumably Special Agent Miller, not someone who
received the information second or third hand. Our Supreme Court has stated that prisoners
enjoy only a “qualified right to introduce evidence and call witnesses in disciplinary
proceedings.” Willis, 113 S.W.3d at 713. As discussed above, the UDP allows the board to
rely on any evidence it deems reliable. TDOC Policy No. 502.01(VI)(L)(4)(c)(2). The right
to confront one’s accuser is not applicable to disciplinary proceedings. Holmes v. Tenn.

                                              -5-
Dep’t of Corr., No. E2008-00894-COA-R3-CV, 2009 WL 1065941, at *4 (Tenn. Ct. App.
Apr. 21, 2009); Keen v. Tenn. Dep’t of Corr., No. M2007-00632-COA-R3-CV, 2008 WL
539059, at *4 n.3 (Tenn. Ct. App. Feb. 25, 2008).

        Moreover, as the defendants point out, the record does not reflect that Williams
submitted a CR-3511, a witness request form required to be submitted 24 hours before the
hearing by an inmate who wishes to have witnesses present. TDOC Policy No.
502.01(VI)(L)(4)(d)(1). In fact, the hearing summary contains a statement purported to be
signed by Williams waiving the right to call witnesses on his behalf. This court has
previously denied relief to an inmate claiming he was not allowed to call witnesses when
there is nothing in the record showing that the inmate made such a request. See Rogers v.
Payne, No. E2010-00523-COA-R3-CV, 2010 WL 4272745, at *3 (Tenn. Ct. App. Oct. 28,
2010); Keen, 2008 WL 539059, at *5.

       As to adverse documentation, Williams seems to be arguing that the statements of
Special Agent Miller should have been provided to the board and to him. The UDP gives an
inmate the right to “cross-examine any witness (except a confidential source) who testified
against him/her and to review all adverse documentary evidence (except confidential
information).” TDOC Policy No. 502.01(VI)(L)(4)(c)(3). The board based its decision on
Sgt. Jordan’s testimony concerning the findings of Agent Miller’s report. We know of no
provision of the UDP that required the board to get a statement from Agent Miller.

        Williams’ final argument is that he was denied the opportunity to appeal the decision
of the disciplinary board. The defendants do not argue on appeal that Williams failed to
exhaust his administrative remedies. We need not consider any errors alleged to have
occurred during the administrative appeal process because this court has determined, as did
the trial court, that there is material evidence to support the decision of the disciplinary board
and Williams has failed to show that the board acted illegally, fraudulently, or arbitrarily.

                                         C ONCLUSION

      The decision of the chancery court is affirmed. Costs of appeal are assessed against
Williams and execution may issue if necessary.


                                                         ______________________________
                                                              ANDY D. BENNETT, JUDGE




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