                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                        Assigned on Briefs December 7, 2010

      BILLY ERNEST KILBURN v. TENNESSEE DEPARTMENT OF
                      CORRECTION ET AL.

                Appeal from the Chancery Court for Hickman County
                      No. 09-289C    Jeffrey S. Bivins, Judge


              No. M2010-01362-COA-R3-CV - Filed February 14, 2011


Inmate brought petition for writ of certiorari challenging his conviction of the prison
disciplinary offense of conspiracy to violate state law. The trial court granted judgment on
the record to the Tennessee Department of Correction (“TDOC”). We have concluded that
TDOC failed to follow the Uniform Disciplinary Procedures, but that this departure did not
affect the disposition of the case. We therefore affirm the chancellor’s decision.

 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.

Billy Ernest Kilburn, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
and Kellena Baker, Assistant Attorney General; for the appellee, Tennessee Department of
Correction, State of Tennessee, Civil Rights and Claims Division.


                                        OPINION

                        F ACTUAL AND P ROCEDURAL B ACKGROUND

       Billy Ernest Kilburn is an inmate in the custody of TDOC and is housed at the Turney
Center Industrial Complex. On September 14, 2009, Kilburn was charged with the prison
disciplinary offense of conspiracy to violate state law, Tenn. Code Ann. § 39-16-201,
possession of a weapon in a penal facility.
       The prison disciplinary report issued to Kilburn states that, on September 9, 2009,
Officer Roy Bates, who was assigned as security for the TRICOR metal plant, noticed sparks
coming from a paint booth. Officer Bates found an inmate, Terry Miller, making a knife with
a hand grinder or sander. The disciplinary report further states:

       According to [form] CR-2026 sander number 096 was signed out to Kilburn
       by Keith Semore TRICOR employee on 9-9-2009 at 12:30 p.m. Inmate
       Kilburn lost or provided the sander used in the manufacturing of a weapon by
       inmate Miller . . . .

The report goes on to state that Miller admitted manufacturing the weapon. Miller, Kilburn,
and a third inmate, who allegedly warned Miller that Officer Bates was coming, were
charged with conspiracy to violate state law, possession of a weapon in a penal facility.

       A hearing was held before the prison disciplinary board on September 16, 2009.
Kilburn pled not guilty, and according to the hearing summary, argued that the sander was
taken from the tool cart and that he had no knowledge that anyone had taken or was using
the sander. The hearing summary indicates that the following evidence was introduced: the
testimony of Sergeant Jordan, the official who prepared the disciplinary report; the hand
sander; and the CR-2026 sign out sheet. Sergeant Jordan testified that Kilburn was
responsible for the sander and that his supervisor, Semore, had assigned it to him. Inmate
Miller testified that he took the sander without anyone’s permission and without Kilburn’s
knowledge. The board found Kilburn guilty “due to tool control, grinder was signed out to
Inmate Kilburn.” As punishment, the board imposed a $5 fine, a written reprimand, and
recommended job drop.

       Kilburn appealed the board’s decision to the warden. Kilburn argued that TDOC
policy 506.03(H)(3) required that the signature of the employee/inmate receiving a tool had
to be on the CR-2026, and he had not signed the form in question. Kilburn requested, but
never received, a copy of the CR-2026. The warden affirmed the board’s decision. Kilburn
then appealed to the TDOC Commissioner, who affirmed the warden’s decision on October
22, 2009.

       Kilburn filed a petition for common law writ of certiorari on December 18, 2009.
After filing a certified copy of administrative record, TDOC filed a motion for judgment on
the record. Kilburn responded by filing a statement with several exhibits. One of the
exhibits was an internal prison memorandum, dated September 23, 2009, from a deputy
warden to all prison staff stating, in part, as follows:




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       Departmental Policy 506.03 requires that all tools issued be signed out by the
       receiving employee/inmate on the Tool Control Issue and Turn-In Form, CR-
       2026. Having the employee or inmates name pre-printed in the signature
       section of this form is not acceptable. Their [sic] must be an actual signature
       in this designated area on this form.

        In an order entered on June 15, 2010, the chancellor granted TDOC’s motion for
judgment on the record. With respect to Kilburn’s argument regarding the board’s failure
to follow the Uniform Disciplinary Procedures, the court reasoned:

       The record shows that Petitioner testified in his own defense and that the
       hearing summary adequately describes the evidence introduced at the hearing,
       the substance of Petitioner’s testimony, the substance of the reporting official’s
       testimony, and states detailed reasons for the board’s decision. To the extent
       Petitioner’s argument that the board failed to attach form CR-2026 to the
       hearing summary is an argument that the form was not presented at the
       hearing, there is no provision in the policy that provides an inmate with the
       right to review documents or to present them at a disciplinary hearing. To the
       extent the argument regarding form CR-2026 is an argument that the form was
       used at the hearing but was not attached to the hearing summary, this argument
       likewise fails because Petitioner stated in his petition that “the only physical
       evidence introduced [at the hearing] was . . . air grinder #096.”

Kilburn appeals the chancellor’s decision.

                                   S TANDARD OF R EVIEW

        The scope of review with respect to a common law writ of certiorari is limited. 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

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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.

                                          A NALYSIS

       Kilburn asserts that TDOC failed to fulfill its obligations under Tenn. Code Ann. §
27-9-109 by failing to include in the administrative record provided to the court a copy of the
CR-2026 tool sign-out form. Tenn. Code Ann. § 27-9-109 requires the board to provide the
court with a complete transcript of the proceedings “containing also all the proof submitted
before the board or commission.” In his petition for common law writ of certiorari and in
his brief, however, Kilburn acknowledges that the CR-2026 form, though listed on the
hearing summary, was not actually presented to the board.

       Kilburn’s more convincing argument is that TDOC committed error in failing to
produce the CR-2026 form at the hearing or thereafter in violation of the Uniform
Disciplinary Procedures (“UDP”). The UDP 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 do 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); 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).

        The specific provision of the UDP at issue in this case is TDOC Policy No.
502.01(VI)(L)(4)(c)(3), which 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 interprets the final phrase
concerning “adverse documentary evidence” to mean any evidence presented against the
inmate. Since the CR-2026 was not presented at the hearing, TDOC argues, Kilburn had no
right to examine it. We consider this interpretation too restrictive. TDOC specifically relied
upon the CR-2026 in finding Kilburn guilty of the disciplinary infraction. Sergeant Jordan,
the reporting official, testified that, according to the CR-2026 form, the sander was checked
out to Kilburn by a TRICOR employee. On this basis, the board found Kilburn guilty. While
the CR-2026 was not actually introduced at the hearing, its contents were an integral part of

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TDOC’s case against Kilburn, and we believe that the UDP provision quoted above gave
Kilburn the right the examine the form as “adverse documentary evidence.”

       We believe TDOC violated the UDP by failing to provide Kilburn with the CR-2026
form, but this error was harmless because a TDOC employee testified that the form indicated
that the sander was checked out to Kilburn by a TRICOR employee. Thus, the fact that
Kilburn himself did not sign the form was already part of the record before the board. The
board evaluated the evidence and the credibility of the witnesses, and the record contains
material evidence to support its decision.

                                      C ONCLUSION

       For the reasons discussed above, we affirm the decision of the chancellor. Costs of
appeal are assessed against the appellant, for which execution may issue if necessary.


                                                     ______________________________
                                                          ANDY D. BENNETT, JUDGE




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