1 See Hitson v. Bradley , No. 01A01- 9403-CH-00129, 1994 WL 420912, at * 1 (Tenn. Ct. App. Aug. 12, 1994)

(No T enn. R. App. P. 11 app licati on filed) .



### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs J uly 30, 2002 ROCKY D. HITSO N v. TENNESSEE DEPARTMEN T OF CORRECT ION

Appeal from the Chancery Court for Davidson County No. 01-2563-I Irvin H. Kilcrease, Jr., Chancellor

No. M2001-02903-COA-R3-CV - Filed Septem ber 25, 2003

This appea l inv olves a disp ute be tween a pris oner an d the D epartm ent of Corre ction regardi ng a disciplinary

hearing held at the Northeast Correctional Complex in Mountain City. The p riso ner filed a petition

for writ of cert iorari in the Chanc ery

Court for Davidson

County alleging that he had been substantially prejudiced by the Department’s failure to follow its disciplinary rules. The trial court, relying

on Sandin v. Conner , 515 U.S. 472, 115 S. Ct. 2293 (1995), granted the Department’s Tenn. R. Civ. P. 12.02(6) motion and dismissed the petition. The petitioner has appealed. We have determinedthat the trial court’s order should be vacated and r emanded for fur ther con siderati on in light of Willis v. Tenne ssee De

p’t of Corr. , ___ S.W.3d ___, 2003 WL 22019138 (Tenn. Aug. 27, 2003). Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cha

ncery Court Vaca

ted and Remanded
W IL LI AM C. K OCH , J R ., J., delivere d the opinion of the court, in which W IL LI AM B. C AIN and P ATRIC IA J. C OTT RELL , JJ., joined. Rocky D. Hitson, Pikeville, Tennessee, Pro Se.
Paul G. Summers, Attorney Gene ral and Reporter, and Arthur Crownover I I, for the app el lee, Tennessee Department of Correction.
OPINION
I. Rocky Hitson is currently se

rving a thirty -year

sentence for murder 1 at the Turney Center in Hickman County . Prior to h is in ca rcera

tion at the

Turney Center, h e was hou sed at the

Northea st Correctional Complex in Mou ntain City . In June 2001, wh ile housed at the No

rtheast Correctional Compl ex, Mr. Hitson was charged with the disciplinar y offe nse of attempting to intimidate an employee. A o ne -p er so n d is ci pl in ar y b oard fou nd him guilty of the of

fense and punished him by2 Mr. Hitson fil ed his petit ion in the wrong county. In Hawkins v. Tennessee Dep ’t of Corr. , No. M2001-00473-

COA- R3- CV, 2002WL 1677718, at * 7-8 ( Tenn. Ct . App. Jul y 25, 2002) (No Tenn. R. App. P. 11 appl icat ion fil ed), we construed Tenn. Cod e Ann. § 41-21-803 (1997) to require that a lawsui t for a cause of acti on accrui ng whil e a pris oner is incar cerated mus t be brought in t he county where the faci lit y housi ng the pr isoner

is l ocated. Mr. Hit son was hous ed at the Northeast Correctional Complex in Johnson County when he fil ed his complaint in t he Chanc ery Court

for Davids on Co unty. Ac cord ingly, und er T enn. C ode Ann. § 41-2 1-80 3, it was filed in the wro ng co urt. W e will not v acate the judg men t in this case o n those grou nds, ho weve r, bec ause M r. Hitso n file d his peti ti on befo re ou r dec ision in Hawkins was f

il ed, and none of t

he parti es rai sed the applicat ion of Tenn. Code Ann. § 41-21-803 eit her in the t

rial court or o n app eal.

3 Of cours e, i t i s now s ett led be yond r eason ed debat e th at pr ison disci plinar y proceedin gs may be r eviewed using
a com mon -law writ o f certiora ri. Robinson v . Cl ement , 65 S.W .3d 6 32, 6 34 n .1 (T enn. C t. App . 200 1); Rh ode n v. S tate Dep ’t of Corr. , 984 S.W .2d 955, 956 (Tenn. Ct. App. 1998 ). -2- reclas sify ing him a nd stripping him

of his trusty status, transferr ing him to the Turney

Center, and depriving him of his right to earn sentence r eduction credits.
After exhausting

his intern al appea

ls, Mr. Hitson filed a petition for writ of certiorari in the Chancery Courtfor Davids on Co un ty. 2 He alleged in his petition that the disciplinary board had acted arbitrarily a

nd illegally by

failing to follow the Department’s ow n Uniform Disciplinary Procedu res. Specifically, he a sserted (1) that he had been refused

accessto the evi dence u sed ag ainst him, (2) that he had been denied the right to pres ent witne sses, and (3) that the corrections officer who conducted

the disciplinary hea

ring was biased because he had also served as the investigating officer in the case. TheDepartment responded to the petition w ith its cust

omary Tenn. R. Ci v. P. 12.02(6) motion todismiss. The trial court granted the Dep artment’ s motion on tw o grounds. First , the court concluded that Mr. Hitson’s c omplaint di d not fall within the scope of a writ of certiorari because it dealt “with an a dministrative issue as opposed to a judicial function.” 3 Second, citing Sandinv. Conner , 515 U.S. 4 72, 115 S. Ct. 2293 (199 5), the c ourt dete rmined tha

t he had f ailed to state a claim because his punishment was not “atypica l or [did not] give rise to a hardship uncommon among other inmates.”
II.
Sandinv. Conner is no longer an insurmountable barrier to prisonersseeking judicial review of prison disciplinary proceedings. The Tennessee Supreme Court has now held that prisoners who filea petition for common-law writ of certiorari seeking revie w of a prison disciplinary proceeding state a claim th at will su

rvive a m o tion to dismiss if they allege “f acts demonstrating that the disciplinary

board fa iled to follow the Un

iform Disciplinary

Procedu res and [th at] this fai lure substantia lly prejudiced . . . [them].” Willis v. Tennessee Dep’t of Corr. , ___ S.W.3d ___, ___, 2003 WL 22019138, at

* 5 (Tenn. Aug. 27, 2003). This decision applies to all cases pending on appeal when it was filed, and accordingly , we will review Mr. Hitson’s petition using the Willis standard.
Taki ng the allegations in Mr. Hitson’s complaint as true, as we must because of th e Department’s Tenn. R. Civ. P. 12.02(6) mot ion, wehave determined that they describe three material deviations from the Uniform Disciplinary Procedures and that these deviat io ns substan

tially prejudiced

Mr. Hitson. First, Tenn. Dep’t Corr. Policy No. 502.01(VI)(2)(E) (c)(3) (2001) states that “[t ]he inmat e or advisor will be allowed . . . to review all adverse doc umentary evide

nce (except-3-

confide nti al information) .” Mr. Hit son alleg es that he was not given acc ess to a “ letter by Unit Manager Freeman . . . which the

hearin g officer used in finding Petitioner g uilty.” Being

denied accessto the Dep artment’ s evidenc e is pate ntly prejudic ial unlessthe infor mation be ing soug ht is confide ntial. Becau se the record contains no evidence that the “letter by Unit Manag er Freeman” was confide

nti al, Mr . Hitson’sallega tion reg arding

the hear ing off icer’s f ailure to comply with Tenn. Dep’t Corr. Policy No. 502.01(VI)(E)(2)( c)(3) states a claim that could, if substantiated, merit relief u nder a c ommon-law

writ of c ertiora

ri. Second, Tenn. Dep’t Corr. Policy No. 502.01(VI)(E)(2) (c)(6) ( 2001) pro vides tha t an “inma te shallbe permitted to presen t th e testimon y of releva nt witness (es) unl ess allow ing a witness to appear would pose

a threat to institutional safety and or der.” Mr. Hitson’s petition alleges that the hear ing officer “acted illegally and arbitrarily

. . . by deny

ing Petitioner’s request for the presence of two inmate witnesses who would have testified favorably in Pet itioner’s be half, because Petitioner woul d not enter

a plea of guilty to the cha

rged o ffense .” This ev

idence w as clea

rly rele vant an d could have affec ted the ou

tcome of the proceeding. Bec ause there is no evidence in the record tha t calling these two witnesses would have posed a threat to institutional safety and order, this allegation also state s a claim t

hat could , if substa

ntiated, merit re

lief unde r a commo n-law wr

it of cer tiorari.
Fi na ll y, the D epar

tment ’s Un

ifor m Disc iplin ary

Proc edur es ar e inte nded “[t]oprovide for a fair and impartial determination and resolution of all disciplinary charges placed ag ainst inmates.” Tenn. Dep ’t C orr . P ol icy N o. 5 02. 01( II I) (2001) . Because of the fundamental importance of a neutral and unbiased hearing officer , the Unifo rm Discip linary

Procedu res spec ifically

state tha t in Class B disciplinary

hearings conducted by

a single hearing office

r, the designated hearing of ficer “shall notbe permitted to hear any given case” if he or she e ither participated in its investigation or has personal knowledge of the case ’s disputed facts. Tenn. Dep’t Corr . Po licy No. 502.01(VI)(A)( 2)(b) & (c) and (B)(1) ( 2001). Mr. Hitson alleges that the hearing office r in his ca se conducted

an investigation i nto the ca se before hearing it. Acc epting Mr. Hitson’s allegations as true , we f ind that Mr. Hitson has stated a claim that could, if substantiated, merit relief under a common-la

w writ of c ertiora

ri.
III.
We vacate the dismissal of Mr. Hitson’s petition for common- law writ of certiorari and remandthe case to the trial court with directions to grant the writ of c ert iorari di recting the Department

to file the

record of the dis cipli na ry proceedings and then to adjudicate Mr. Hitson’s claims in light of that record. We tax the costs of this appeal to the State of Tennessee.

__________________________________ WI LL IA M C. K OCH , JR. , J.