                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                          ASSIGNED ON BRIEFS MAY 24, 2001

           DAVID NEVILLS v. SOUTH CENTRAL CORRECTIONAL
                       DISCIPLINARY BOARD

                  Direct Appeal from the Chancery Court for Wayne County
                  No. 10490; The Honorable Robert L. Holloway, Chancellor



                  No. M2000-02324-COA-R3-CV - Filed September 25, 2001


This appeal involves the denial of a petition for writ of certiorari brought in chancery court by a state
prisoner. The prisoner requested review of actions allegedly in violation of due process taken by a
prison disciplinary review board. The chancery court granted a motion for summary judgment in
favor of the disciplinary review board and for the following reasons, we affirm.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
KIRBY LILLARD, J., joined.

David Nevills, Clifton, TN, pro se

Tom Anderson, Jackson, TN, for Appellee


                                              OPINION

                                   Facts and Procedural History

       Appellant, David Nevills, is an inmate in the lawful custody of the Tennessee Department
of Corrections (“TDOC”) and incarcerated at the South Central Correctional Facility (“South
Central”) in Clifton, Tennessee. South Central is operated by Corrections Corporation of America
(“CCA”), a private entity under contract with TDOC to manage the facility.

       On June 2, 1999, Mr. Nevills was charged with conduct in violation of Tennessee
Department of Corrections Policy #9502.01.VI(E)(4)(a), otherwise known as “Solicitation of Staff.”
Following the charges, Mr. Nevills was placed in segregation for two days prior to a hearing before
South Central’s Disciplinary Board. During his time in segregation, Mr. Nevills alleges that he
asked for a continuance of his disciplinary hearing for the opportunity to request exculpatory
witnesses and to confer with an inmate advisor. After having this request for continuance denied,
the Board conducted a hearing. As a result of the hearing, the Board made a recommendation to a
TDOC liaison that Mr. Nevills be found guilty of the alleged infraction. Consequently, the TDOC
liaison approved the recommendation and convicted Mr. Nevills of the offense.

       Following his conviction, Mr. Nevills properly followed the policies established by TDOC
for appealing disciplinary convictions. However, on June 14, 1999, Jim Rose, Assistant
Commissioner with TDOC, affirmed the conviction. Subsequently, the Commissioner of
Corrections, Donal Campbell, also affirmed the conviction.

       On August 13, 1999, Mr. Nevills petitioned the Chancery Court of Wayne County for a
common-law and statutory writ of certiorari, naming the Board as respondent, to review the actions
taken by the Board. The Board, led by Chairman Leo V. Schachle, filed an answer and,
subsequently, a motion for summary judgment alleging that the Board was not the proper respondent
in the matter. The chancery court granted the motion for summary judgment and this appeal
followed.


                                        Standard of Review

        The chancery court’s grant of summary judgment is not entitled to a presumption of
correctness on appeal. McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 894 (Tenn.
1996). Rather we must review de novo to determine whether the requirements of Tennessee Rule
of Civil Procedure 56 have been met. Mason v. Seaton, 942 S.W.2d 470,472 (Tenn. 1997). A
summary judgment is warranted only when there are no genuine, material factual disputes with
regard to the claim or defense asserted in the motion and the moving party is entitled to a judgment
as a matter of law. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). In making our determination,
we must take the strongest view of the evidence in favor of the nonmoving party, allowing all
reasonable inferences in his favor and discarding all countervailing evidence. Shadrick v. Coker,
963 S.W.2d 726, 731 (Tenn. 1998) (citing Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993)).



                                         Law and Analysis

        Although Mr. Nevills’ pro se appeal failed to specifically define the issues presented before
this court, the following two issues pertaining to his claim that he is entitled to a writ of certiorari
should be addressed:

       1. Whether Mr. Nevills named the correct respondent in his petition for a writ of certiorari;
and



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       2. Whether the protections afforded by the Due Process Clause of the Fourteenth
Amendment of the U.S. Constitution are implicated under these circumstances, warranting issuance
of a common-law or statutory writ of certiorari.

We will address each issue accordingly.


        With regard to the first issue, we agree with the chancery court and hold that Mr. Nevills
failed to name the correct respondent in his petition for writ of certiorari. The Tennessee Supreme
Court has held that the Board at South Central has no authority to convict or impose sanctions upon
prisoners for violations of disciplinary rules. Mandela v. Campbell, 978 S.W.2d 531, 533 (Tenn.
1998). In arriving at its conclusion in Mandela, the supreme court recognized that section 41-24-
110(5) of Tennessee Code Annotated provides in pertinent part:

         No contract for correctional services shall authorize, allow or imply a delegation of
         the authority or responsibility of the commissioner to a prisoner contractor for any
         of the following: . . . granting, denying or revoking sentence credits; placing an
         inmate under less restrictive custody or more restrictive custody; or taking any
         disciplinary actions.

Id. (citing Tenn. Code Ann. § 41-24-110(5)). While the Board was properly considered a contractor
as contemplated in the statute, the supreme court ruled that TDOC had not improperly delegated its
authority. Under the policies in place at South Central, the court found that the authority to convict
and impose sanctions upon prisoners remained with TDOC. Id.; see also Davis v. Rose, No 01A01-
9610-CH-00494, 1997 WL 83617, *2-3 (Tenn. Ct. App. Feb. 28, 1997). The Board would merely
recommend punishment based on the Board’s findings and an authorized TDOC representative
would either accept or amend the Board’s recommendations after their own review.

        Based on Mandela, this Court has concluded numerous times that writs of certiorari
stemming from alleged violations of rights of prisoners at South Central during disciplinary hearings
must be directed towards TDOC as opposed to the Board or its members.1 Turner v. Campbell, 15
S.W.3d 466, 468 (Tenn. Ct. App. 1999); see also Wilson v. S. Cent. Corr. Facility Disciplinary Bd.,
No. M2000-00303-COA-RM-CV, 2000 WL 1425228, at *5-6 (Tenn. Ct. App. Sept. 28, 2000);
Buford v. Tenn. Dep’t of Corr., No. M1998-00157-COA-R3-CV, 1999 WL 1015672, at *5 (Tenn.
Ct. App. Nov. 10, 1999). As aptly stated by the Honorable Ben Cantrell of this Court, a writ of
certiorari “should be directed to the governmental agency that is responsible for the actions of which
the petitioner complains.” Turner, 14, S.W.3d at 468. Because the Board has no authority to convict

         1
           W e are aware of decisions apparently contradicting the prop osition that th e only p roper resp onden ts for writs
of certiorari to review prison disciplinary boards is TDOC. See e.g., Seals v. Bowlen, No. M1999-00997-COA-R3-CV,
2001 WL 840271, *3-5 (Tenn. Ct. App. July 26, 2001); however, in cases where other respondents, such as the
disciplinary board itself, w ere held to be prop erly nam ed in writs of certio rari, the prisons where the claims arose were
state run rather than under contract with a priv ate entity for mana gement. Th us, in such cases, peo ple other than just
a sole TD OC rep resentative had auth ority to affe ct the liberty in terests of priso ners.

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 or impose sanctions upon a prisoner, it necessarily follows that a writ of certiorari to review the
 Board’s actions would not provide any relief from convictions or sanctions actually imposed upon
 the prisoner. TDOC is the appropriate governmental agency that should have been named as
 respondent.

         In his brief, Mr. Nevills asserts that disputed facts exist which should have precluded the
 chancery court from granting a motion for summary judgment. Mr. Nevills states that he “had not
 been allowed or given [the] opportunity to discuss a defense with [his] inmate advisor, or the
 opportunity to request [the] presence of exculpatory witnesses.” He further states that the Board
 arbitrarily denied his requested continuance. However, upon inspection, these facts, when taken as
 true, have no bearing on the propriety of the summary judgment. As discussed above, the Board was
 not in a position to deny Mr. Nevills his liberty interests.

         Just as the Supreme Court of Tennessee recognized in Mandela, we too recognize the amount
 of involvement that the Board has in the disciplinary process at South Central. The Board’s
 responsibilities include conducting hearings, reviewing the evidence, and making recommendations
 to TDOC for disciplinary action. However, we also cite with approval the Wilson court’s
 acknowledgment of the following powers retained by the TDOC liaison throughout the entire
 disciplinary process at South Central:

         the authority to affirm or reject the segregation of any inmate pending disciplinary
         action; to approve (or disapprove) of any sanctions imposed on an inmate who pleads
         guilty to a disciplinary offense; to stay or suspend the implementation of any
         punishment for up to 60 days; to stay any punishment pending the results of an
         appeal; and together with the warden, to review and approve any confinement of an
         inmate in punitive segregation for more than 30 days.

Wilson, 2000 WL 1425228, at *3 (citations omitted). Further, we agree with the Wilson court that
the TDOC liaison is not merely a “rubber stamp” in place only to approve actions taken by the Board.
Id. Instead, the TDOC liaison has a duty to take an “active and decisive role in the disciplinary
process.” Id. Accordingly, where a TDOC liaison fails in these respects, the Board, as a composition
of private employees, can create liability for the state. Thus, Mr. Nevills’ petition for writ of certiorari
improperly states the Board as respondent, as opposed to TDOC, and must fail for that reason.
However, even if the Board were the correct respondent in Mr. Nevills’ writ of certiorari, Mr. Nevills’
appeal would still fail for the reasons below.

       With regard to the second issue, we hold that Mr. Nevills fails to allege any facts regarding
his conviction which would tend to show a deprivation of a liberty interest entitling him to protection
under the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. Accordingly,




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the chancery court was not in error for failing to issue a common law or statutory writ of certiorari.2

         It is well settled that the scope of review under the common law writ of certiorari is very
narrow. Review under the writ is limited to whether "the inferior board or tribunal (1) has exceeded
its jurisdiction, or (2) has acted illegally, arbitrarily, or fraudulently." McCallen v. City of Memphis,
786 S.W.2d 633, 638 (Tenn.1990); see also Powell v. Parole Eligibility Bd., 879 S.W.2d 871, 873
(Tenn.Ct.App.1994). The intrinsic correctness of the decision below can not be reviewed under the
writ. Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478 (Tenn.1997). As stated in Powell, "it is
not the correctness of the decision that is subject to judicial review, but the manner in which the
decision is reached." Powell, 879 S.W.2d at 873. A lower board or tribunal's decision is subject to
judicial review under the common law writ of certiorari if the lower board or tribunal "acted in
violation of constitutional or statutory provisions or in excess of its own statutory authority; has
followed unlawful procedure or been guilty of arbitrary or capricious action; or has acted without
material evidence to support its decision." Watts v. Civil Service Bd., 606 S.W.2d 274, 277 (Tenn.
1980).

        Here, Mr. Nevills seeks review of the alleged denial of due process and not the final
determination of his guilt. Mr. Nevills alleges that the Board violated his due process rights by
arbitrarily denying a requested continuance of his disciplinary hearing, which resulted in an inability
to request exculpatory witnesses and to confer with an inmate advisor. Further, Mr. Nevills claims
the Board failed to adequately summarize the reasons for its findings as required by TDOC policy.
Thus, because Mr. Nevils presents a claim that the Board violated his constitutional due process rights
rather than a claim as to the intrinsic correctness of the decision, his claim could properly fall under
the gambit of issues available for review under a common law writ of certiorari. However, upon
analyzing Mr. Nevills’ claim that he was denied due process of law, we find his argument without
merit.

         We must first address the necessary procedural requirements for a constitutionally adequate
prison disciplinary hearing. The United States Supreme Court has held that a prisoner retains
constitutional rights even upon incarceration. However, the "full panoply of rights" afforded
defendants in criminal prosecutions does not extend to prisoners subject to disciplinary proceedings.
 Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Minimum constitutional requirements include (1)
written notice of the charges at least twenty-four hours prior to the hearing; (2) an opportunity to
present witnesses when doing so would not be unduly hazardous to institutional safety or correctional
goals; (3) an impartial decisionmaker; and (4) a written statement by the fact finders as to the
evidence relied upon and the reasons for the disciplinary action. Id. at 564-66. An inmate does not
have a right to either retained or appointed counsel. In situations where the inmate is illiterate or the
issue is highly complex, however, the inmate may seek the aid of another inmate or receive aid from
the staff. An inmate does not have a right to confrontation or cross-examination of witnesses.


          2
           W e need only discuss the merits regarding the issuance of a common law writ of certiorari in the matter before
 us. In Buford , this Court clearly held that statutory writs of certiorari are not available for review of proceedings taken
 by prison disciplinary boards. Buford, 1999 WL 1015672, at *4.

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        The Supreme Court later limited its holding in Wolff by finding that the imposition of certain
disciplinary sanctions does not create a liberty interest entitling a prisoner to due process protections.
An inmate is entitled to the limited due process rights provided in Wolff only when the resulting
sanctions impose "atypical and significant hardship on the inmate in relation to the ordinary incidents
of prison life." Sandin v. Conner, 515 U.S. 472, 483-85 (1995). Thus, Sandin focuses on the nature
of the deprivation imposed upon the inmate. Courts have held that the following punishments do not
create protected liberty interests under the Sandin standard: placement in ten day solitary confinement
with loss of sentence reduction credits for that time, written and verbal warnings, and confiscation
of personal property, Armstrong v. Tenn. Dep’t of Corr., No. M2000-02328-COA-R3-CV, 2001 WL
618603 (Tenn. Ct. App. June 7, 2001); placement in thirty day segregated confinement, placement
in five day segregated confinement suspended for sixty days, loss of six months of visitation
privileges, and payment for a drug screen, Dotson v. TDOC, No. 01A01-9811-CV-00596, 1999 WL
430405, at *1 (Tenn.Ct.App. June 29, 1999); transfer to a more severe prison facility, Mack v. Jones,
No. 03A01- 9806-CV-00215, 1999 WL 172645, at *3 (Tenn.Ct.App. Mar.24, 1999); removal from
a prison job, Blackmon v. Campbell, No. 01A01-9807-CH-00361, 1999 WL 85518, at *1
(Tenn.Ct.App. Feb.23, 1999); and placement on lockdown, Hawkins v. Sundquist, No.
01A01-9803-CH-00164, 1999 WL 22386, at *1 (Tenn.Ct.App. Jan.21, 1999).

        Here, Mr. Nevills has failed to allege, either at the trial or appellate level, that atypical and
significant hardships in relation to the ordinary incidents of prison life were imposed upon him. In
Mr. Nevills’ original complaint in chancery court, he requested reimbursement of a $5.00 “guilty fee.”
 Further, Mr. Nevills spent two days in segregation pending his hearing before the Board. However,
consistent with our prior opinions, these sanctions fall short of the imposition of atypical and
significant hardships in relation to the ordinary incidents of prison life. Thus, Mr. Nevills failed to
show his liberty interests were at stake and that he was entitled to any of the limited due process rights
provided to prisoners in Wolff. Thus, denial of the writ of certiorari by the chancery court was
proper.

                                              Conclusion

        For the foregoing reasons, the decision of the chancery court is affirmed. Costs of this appeal
are taxed against the Appellant, David Nevills, for which execution may issue if necessary.



                                                         ___________________________________
                                                         ALAN E. HIGHERS, JUDGE




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