             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                          FILED
                                                         November 25, 1998
MONROE E. DAVIS,                      )
                                      )                  Cecil W. Crowson
       Petitioner/Appellant,          )                 Appellate Court Clerk
                                      )      Appeal No.
                                      )      01-A-01-9712-CH-00755
VS.                                   )
                                      )      Davidson Chancery
                                      )      No. 96-1310-I
COMMISSIONER DONAL                    )
CAMPBELL, ET AL.,                     )
                                      )
       Respondents/Appellees.         )


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

          THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR




MONROE E. DAVIS, #130909
Middle Tennessee Correctional Complex-Annex
7466 Centennial Boulevard
Nashville, Tennessee 37209
      Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General & Reporter

ABIGAIL TURNER
Assistant Attorney General
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
       Attorney for Respondents/Appellants




                           AFFIRMED AND REMANDED




                                       BEN H. CANTRELL
                                       PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
CAIN, J.
                                OPINION
              An inmate who was disciplined for threatening a correctional officer filed

a Petition for Writ of Certiorari, claiming that he was denied due process in the

disciplinary proceedings. The trial court dismissed the petition. We affirm.



                                            I.



              Monroe E. Davis, an inmate in the Cold Creek Correctional Facility, was

temporarily housed in the Middle Tennessee Reception Center. On February 22,

1996, he allegedly directed a threatening statement at a correctional officer.

Apparently he and another inmate were discussing the violent death of a female

correctional officer which had been reported on the news that day, when he pointed

to officer Sheri Smith and said “They are going to find you killed in a van next.” He

allegedly repeated this statement several times.



              That evening, a correctional officer delivered a disciplinary report to Mr.

Davis, stating that he was being charged with threatening an employee. The report

described the incident and named Correctional Officer Tate as a witness. Mr. Davis

refused to sign the report. The next day he was sent back to Cold Creek Correctional

Facility.



              Another copy of the disciplinary charge was faxed to Cold Creek, with

a notice that the disciplinary hearing had been scheduled for February 28, 1996. Mr.

Davis acknowledges that the fax was delivered to him on the morning of February 26.

He was transported to the Middle Tennessee Reception Center for the hearing, which

was conducted by a board of three correctional employees.               Mr. Davis was

represented by an inmate advisor. Mr. Davis testified, and admitted that he had been

discussing the death of a female officer, but denied that he had directed any threat

to Officer Smith. Officer Smith testified to the contrary, as did Officer Tate. Mr. Davis

did not call any witnesses on his behalf.


                                          -2-
              At the conclusion of the hearing, the board unanimously found Mr. Davis

to be guilty of threatening an employee, and sentenced him to fifteen days in

segregation, and another fifteen days to be served as sixty days suspended. All three

members of the board signed a hearing summary, which recited the board’s findings

of fact, and stated the evidence it relied upon in reaching those findings.



              Mr. Davis appealed his disciplinary conviction to the warden, who

dismissed the appeal on March 4, 1996. He then filed an appeal to the Commissioner

of the Department of Correction on March 29, 1996, which was returned unanswered

because the fifteen day time limit for such appeals had expired.



              On April 25, 1996, Mr. Davis filed his Petition for Writ of Certiorari in the

Chancery Court of Davidson County, naming as respondents the Commissioner of the

Department of Correction, the Assistant Commissioner, the Warden, and four

correctional employees. The Department filed a Motion for Summary Judgment,

which was granted on December 1, 1997. This appeal followed.



                                             II.



              A common law Writ of Certiorari will issue only when an inferior tribunal

has exceeded its jurisdiction, or when its proceedings are shown to be arbitrary, illegal

or fraudulent. Powell v. Parole Eligibility Review Board, 879 S.W.2d 871 (Tenn. App.

1994). Mr. Davis alleges that he received inadequate notice of the proceedings

against him, and that he was denied the opportunity to present witnesses on his

behalf. He also alleges that the outcome of the disciplinary hearing was pre-

determined, because one of the respondents had told the hearing panel to find him

guilty. These allegations amount to a claim of denial of due process, and thus of

illegality on the part of the respondents.




                                             -3-
                The United States Supreme Court has noted that the unique

requirements of prison life necessarily involve the retraction or withdrawal from

inmates of many rights and privileges that are routinely afforded to ordinary citizens.

Wolff v. McDonnell, 418 U.S. 539 (1974). In one case, the Court has held that those

who are incarcerated pursuant to a valid conviction of a crime are not entitled to

constitutional due process in regard to prison disciplinary procedures that can result

in brief periods of disciplinary segregation. Sandin v. Conner, 515 U.S. 472 (1995).



                Sandin v. Conner involved a disciplinary infraction that resulted in Mr.

Conner’s placement in punitive segregation for thirty days. The Court reasoned that

the possibility of such confinement was well within the conditions inherent in the

sentence of thirty years to life originally imposed upon him, and that its possible

application did not create a liberty interest that would entitle him to due process

protections. Such an interest would only arise if the prospective punishment involved

significant hardships, beyond the ordinary incidents of prison life. Mr. Davis has not

stated any reason why the punishment imposed in this case should be considered in

such a light.



                But even if the punishment imposed upon Mr. Davis was so far beyond

the ordinary incidents of prison life as to require the Department to afford him due

process protections, the rights to which he would be entitled would still be limited. As

the Court said in Wolff v. McDonnell, 418 U.S. 539, 556 (1974): “[p]rison disciplinary

proceedings are not part of a criminal prosecution, and the full panoply of rights due

a defendant in such proceedings does not apply.”



                The rights that do apply include advance written notice of the charges

at least twenty-four hours prior to the hearing, a limited right to call witnesses and

present documentary evidence, an impartial decision maker, and a written statement

of the evidence relied upon, with the reasons stated for the action taken. After a


                                          -4-
thorough examination of the record, we conclude that despite Mr. Davis’ complaints

to the contrary, the process he received was consistent with the requirements of Wolff,

if indeed those requirements are even relevant.



              In his affidavit, Mr. Davis denies that he was given a copy of the

disciplinary report on February 22. Even if the trial court considered his denial to be

true (as it was obligated to do when ruling on a Motion for Summary Judgment, see

Mike v. Po Group, 937 S.W.2d 790, 792 (Tenn. 1996), this would still not raise a

question of material fact for purposes of the motion, as Mr. Davis admitted receiving

notice of the charges and of the hearing more than twenty-four hours before the

hearing was scheduled. Further, Mr. Davis’ inmate advisor stated to the Board that

he had had enough time to prepare a defense.



              Mr. Davis claims, however, that he did not have enough time to prepare

an adequate defense, though he does not specify what additional steps he would

have taken if he had been granted more time. Since he complains about his inability

to call witnesses, we presume that he would have wanted to contact those who might

have been willing or able to testify on his behalf.



              But the Supreme Court has stated that the right of an inmate to obtain

the presence of witnesses in a disciplinary proceeding is limited by the “necessary

discretion” of prison officials, who must balance due process against the requirements

of institutional safety and valid correctional goals. Such goals include “the swift

punishment that in individual cases may be essential to carrying out the correctional

program of the institution.” Wolff v. McDonnell at 566. The Court went on to rule that

prison administrators may tailor their procedures and policies to meet the individual

requirements of their own institutions.




                                          -5-
              In Tennessee, the procedure for a prisoner who wishes to call witnesses

is to prepare and submit form CR-3511 at least twenty-four hours in advance, listing

the witnesses he wishes to call, and requesting their presence at his hearing. Prison

officials may then arrange for the witnesses to appear, if doing so does not interfere

with security considerations or with other legitimate concerns.



              The record shows that Mr. Davis did not submit the required form. He

claims that he did not have time to prepare the form, and that the witnesses he wished

to call had all been transferred to other institutions. While it is clear that he did not

have the opportunity to interview prospective witnesses to find out in advance what

they would say, we do not believe that under the requirements of Wolff he would be

entitled to do so. He could, however, have listed those inmates and other individuals

who were present at the time of the alleged threat, and who could have testified as to

what really happened. We find it significant that nowhere in the pleadings, or in the

brief he has presented to this court, does he name a single person who he would

expect to testify on his behalf.



              Finally, Mr. Davis claimed that one of the respondents, Sgt. Eric Qualls,

told him that the disciplinary board would find him guilty, and that he advised the

board to make a finding of guilt. The record shows that Sgt. Qualls was originally

named as the chairperson of the disciplinary board, but that Mr. Davis objected in

writing to his appointment, alleging that a close personal relationship between Sgt.

Qualls and Sheri Smith would prevent him from being impartial.



              The warden honored Mr. Davis’ request and removed Sgt. Qualls from

the board, replacing him as chairperson with Angela Sledge, an administrative

assistant with the department. In her affidavit, Ms. Sledge denied that anyone had

told the board to find Mr. Davis guilty. We note, however, that even if Sgt. Qualls had

made the alleged statement (which would have been extremely unprofessional on his


                                          -6-
part), there is nothing in the record to indicate that the board was obligated or inclined

to take orders from him. We therefore cannot find, on the basis of the record before

us, that Mr. Davis was deprived of a hearing before an impartial decision-making

body.



                                           III.



              The judgment of the trial court is affirmed. Remand this cause to the

Chancery Court of Davidson County for further proceedings consistent with this

opinion. Tax the costs on appeal to the appellant.




                                           _________________________________
                                           BEN H. CANTRELL,
                                           PRESIDING JUDGE, M.S.


CONCUR:



_____________________________
WILLIAM C. KOCH, JR., JUDGE



_____________________________
WILLIAM B. CAIN, JUDGE




                                          -7-
