### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE JANUARY 2000 S ession WILLIE PERRY v. COLD CREEK COR RECTIONAL FACILITY DISCIPLINARY BOARD, ET AL 

### . A Direct Appeal from the Chancery Court for Davidson County No. 97-880-III; The Honorable Ellen Hobbs Lyle, Chancellor

No. M1999-01898-COA-R3-CV - Filed August 9, 2000

This case arises from

the decision of the Cold Creek Correctional Facility Disciplinary Board finding the Appellant guilty

of attempting to i ntimidate an employee and being under the influence of alcohol. The Appellant filed a Petition for Common Law and Statutory Writ of Certiorari with the Chancery Court of Davidson County challenging the Disciplinary Board’s decision. The

trial court affirmed the de

cision of the Boa

rd and dismissed the

Appellant’s clai

m. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed A LAN E. H IGHERS , J., delivered the opinion of the court, in which F ARMER , J., and L ILLARD , J. , joined. Willie Perry, pro se , Henning, TN Paul G. Summers, Attorney G en eral and Reporter; Michael E. Moore, Solicitor General; and Rae Oliver, Assistant Attorney General, for appellee, State of Tennessee OPINION Willie Perry appeals from the dismissal of his Petition for C ommon Law and Statutory Writ of Certiorari filed in the Chancery Court of Davidson County. For the reasons stated herein, we affirm the trial court’s decision. Facts and Procedural History The Appellant, Willie Perry, is an inmate in the lawful custody of the Tennessee Department of Correction (“TD

OC”). At all times r

elevant to this app

eal, Mr. Perry was

incarcerated

at the Cold Creek Correctional Facility in Henning, Tennessee.1 T.C.A. § 27 -8-101 pro vides:
The w rit of c ertiorari

may be granted whenever authorized by law, and also i n all cases where an inferior tribunal, board, or officer exer cising judici

al functions has exce

eded the jurisdictio n confe rred, or is acting illega

lly, when,

in the j udgment of the

court, t here is no

other plain , speedy, o r adequ ate reme dy. This section does not apply t o actions governed by the Tennessee Rules of Appellate Procedure. 2 T.C.A. § 27 -8-102 pro vides:

Certiorari lies:

(1) On suggest

ion of diminut

ion; (2) Where no appeal

is given; (3) As a su bstitute for ap peal; (4) Inst ead of audit

a querela;

or (5) Instead of writ of error. (continu ed...)

-2- On January 6, 1997, Bobby Mullins, a TDOC employee, filed a disciplinary re port charging the Appellant with

being under the influence of alcohol. Pursuant to TDOC Administrative Policies andProcedures, the official charge was “intoxicants-alcohol,” a Class B infraction. The priso n Disciplinary

Boar d co ndu cte d a h eari ng on Jan uary 13, 1997. At the hearing, the Board called Bobby Mullins to testify. Mr. Mullins testified that the Appellant smelled of alcohol and appeared to be intoxicated. A sobriety test was not given. Mr. Mullins was cross-examined by the Appellant, andno other witnesses were called. Based on the written report and the oral testimony, the Board found the Appellant gu

ilty of Class B in tox ica nts -al coh ol a nd s et t he p uni shm ent at t wen ty (2 0) d ays punitive segregation, plus a four dollar ($4.00) court cost. On January 13, 1997, Margaret Edwards, a member of the Disciplinar y Board, filed a disciplinary

report against the Appellant charging him with attempting to intimidate an employee

. The Disciplinary Board conducted a hearing on January 17, 1997. Ms. Edwards testified that the Appellant, at the January 13 hearing, threatened a lawsuit against her if she did not make a decision in his favor

. Ms. Edwards testified that she felt intimidated by the Appellant’s actions at that hearing. Th e Appellant denied the charge and, in his defense, called Rhea Harg ett, another Disciplinary

Board member, who testified that the Appellant never addressed Ms. Edwards spe cif ica lly. Based on thewri tte n rep ort and the oral tes tim ony, the Board found the Appellant gu

ilty of Class C attempting to intimidate an employee and imposed punishment of ten (10) days punitive segregation, plus a three dollar ($3.00) court cost. The Appellant sought relief in the Chancery Court of Davidson County under both a common law writ of

certiorari, pursuant to T.C.A. § 27-8-101, 1 and a statutory writ of certiora

ri, pursuant to T.C.A. § 27-8-102. 2 The trial court dismissed the Appellant’s claims finding that the Disciplinary2 (...continued) This sectio n does n ot apply to actions go verned by the T ennessee Rules of A ppellate Pr ocedu re.

3 To the extent

any of the

Appellant’ s claims a

re based on

the all egation t hat he was found gui

lty of a di

fferent charge than the i

nfracti on for which he was or

iginall y cited, we note that

this i ssue has not

been rais ed previousl

y. The trial court, in it

s ruling, did not

address the inconsi stency in charges. As such, we shall not consi der the is sue in this appeal. See Irwin v. Binkley , 577 S.W .2d 677 (Tenn. C t. App. 19 79); Tops Bar-B-Q, Inc. v. Stri nger , 582 S.W.2d 756 (Tenn. Ct. App. 1977).

-3- Board did not exceed its

jurisdiction, nor did it act illegally, fraudulently, or ar bitrarily. This appeal followed. Law and Analysis This appeal basically presents three i ssues for o ur consideration. Those issues are: 1) whether the Appellant was

entitled to

relief pursuant to a

common-law writ of certiorari, 2) whether the Appellant was entitled to relief pursua nt to a stat utory writ of certiorari, and 3) whether the Appellant stated a claim for retaliation. We shall consider each of these issues in turn. 3
I. Common-law writ of c

ertiorari The Appellant in this case sought review of the Disciplinary Board dec ision through both the common-law and statutory writ of certiorari. We conclude

that the trial court correctly held that the Appellant was not e

ntitled to relief p

ursuant to a common

-law writ of cer

tiorari. It is well-settled tha

t th e scope o f 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 fraudu lently." McCallen v. City of Memphis , 786 S.W.2d 633, 638 (T

enn. 1990); see also Powell v. Parole Eli gibility Review Bd ., 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994). The intrinsic correctness of the decision is not reviewable 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. The Appellant ques t ions whether the evidence relied upon by the Disciplinary Board supported a finding of guilt. Reversal or modification of the Board's action may be had only when the trial court determines that the Board acted in violation of constit

utional and statuto

ry provision

s, exceeded its own statutory authority, followed an unlawful procedur e, acted arbitrarily or capr ici ous ly, or reached a decision without any material evidence to support it. See Hoover Motor Express Co. v. Railroad & Public Utilities Comm’n , 261 S.W.2d 233 (1953). In this regard, the4 The Appellant c laims tha t he was denie

d the right

to call witnesse s. In re

gard to the

January 17, 1997 heari ng, the record indicates

that the Ap pellant called Rhea H argett to testify in his defense. As for the J anuary 13, 1997 hear

ing, the record does no t support th e Appe llant’s claim that he wa s denied th e right to call w itnesses in his favor. It appears that the Ap pellant kn owing ly waive d this right. T herefore , this claim is w ithout m erit. -4- relevant question is "wheth

er there is any

material evidence to support the agency's f indings.” Davison v. Carr , 659 S.W.2d 361, 363 (Tenn. 198 3)(emphasis added). In th

e present case,

there is little, if any, rea

son to question the D

is c iplinary Board’s decision. The Disciplinary Board considered

both written and oral testimony. The Appellant was allowed to cross-examine the witness against him. 4 Clearly, the re was evidence

put f orth which su

pported the finding of the Disciplinary Board. It is not the role of the r eviewin g court under a common-l aw writ of cer tiorari to re-weigh the evidence. With respect to the evidence represented before the Board, review by this Court is no broader or more comprehensive than that of the trial court. See Watts v. Civil Service Bd. for Columbia , 606 S.W.2d 274 (Tenn . 19 80). The record clearly indicates that there was e vidence presented which would support the findings of the Board. As such, the trial cour t did not err in denying th

e Appellant’s re

quest for relief

pursuant to a commo

n-law writ of ce

rtiorari. II. Statutory writ of c

ertiorari The Appellant also sought relief pursuant to a statutory writ of certiorar i, T.C.A. § 27-8- 102. This court has previously addressed the applicability of a statutory writ of certiorari in the context of a prison disciplinary proceeding. In the unr eported case of Buford v. Tenne ssee Dept. of Corrections , 199 WL 1015672 (Tenn. Ct. App. 1999), Judge Crawford, writing for the court stated: [T]he Western Section of this Court departs from our holdings in Williams and Cobb , and declares, along with the other court s , that the functions of prison di sc iplinary boards are administrative and not judicial in nature. Therefore, the statutory

writ of certiora

ri, T.C.A. § 27-8-1 02, is not available for review of proceedings taken by a pr ison disciplinary board. The decision in Buford

expressly overruled prior decisions of th is court which had held that a statutory writ of certiorari may lie from a decision of a prison disciplinary board. Relying upon Ray v. State , 577 S.W.2d 681, 682 (T enn. Crim. App. 1978) cert. denied (1979) and State ex rel. Turner v. Gore , 175 S.W.2d 317 (Tenn. 1943), we held that proceedings before prison disciplinary boar ds are administrative in

nature and are not

judicial proceedings, thus not subject to the relief afforded by a statutory

writ of certiorari. A

s such, the Appella

nt’s claim to

relief pursuant

to a statutory

writ of certiorari is foreclosed by the applicable law.5 Presumably, the tri al court did not addres s the retal iation “clai

m” because no such claim had been made. -5- III. Retaliation c

laim In his brief, the Appellant claims that the cha

rge of “attemp

ting tointimidate an employee” was filed in retaliati

on for his exercisin

g First Amendme

nt rights. However , the Appellant’s “Petition for

Common Law and Statutory Writ of Certiorari” made no mention of a retaliation c

laim, andthe trial court never addressed the issue. 5 The record clearly indicates that this “issue” is being presented to this court for the first time, and we shall not consider it in this ap peal. See Irwin v. Binkley , 577 S.W.2d 677 (Tenn. Ct. App. 1979); Tops Bar-B-Q, Inc. v. Stringer , 582 S.W.2d 756 (Tenn. Ct. App. 1977). Conclusion For the foregoing reasons, the decision of the trial court is affirmed. Costs of this appeal are taxed against the Appellant, Willie Perry, for which execution may issue if necessary.

___________________________________ ALAN E. HIGHERS, JUDGE