### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs M

arch 14, 2001 DON WILLIAMS v. DONAL CAMPB ELL Appeal from the Chancery Court for Davidson County No. 00-755-III Ellen Hobbs Lyle, Chancellor

No. M2000-01821-COA-R3-CV - Filed June 21, 2001

A prison disciplinary board extended the release eligibility date of an inmate, after

finding him guilty of assaulting a guard. He filed a petition for writ of certiorari which challenged the method used by the Department of Cor

rection to calcu

late his new rele

ase eligibility

date. The trial court dismissed the petition. We aff

irm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded B EN H. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which W ILLI AM C. K OCH , J R . and W ILLI

AM B. C AIN , JJ., joined. Don Williams, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor Genera l; and Dawn Jordan, Assistant Attorney General, for the appellee, State of Tennessee. OPINION I. Don Williams came into

the custody of the Department of Correction on May 12, 1992, when he was convicted of

voluntary ma

nslaughter. Mr.

Williams received a sentence of ten year

s. On July 31, 1997, he was convicted of another felony, and he rece ived a three year

sentence to run consecutively to the ten year se ntence. On December 20, 1998, Correctional Officer David Janow strip searched Mr. Williams after he returned from the visiting gallery. Mr. Willi ams was hol ding a bag of cocaine in his mouth, and when Officer Janow as

ked him to

open his mouth, Mr. Williams spit the bag into the commode, and attemptedto flush it away. The officer tried to prevent this, an

d was injured in

the ensuing struggle.-2-

On December 22, 1998, a three member panel of the prison’s disciplinary board conducted a hearing on the incident. The Board found Mr. Williams guilty of an assault on a staff member that resultedin s eri ous inj ury, and extended his release eligibility date (RED) by two years, one month, and f ive days. The Policies and Procedures of the Department of Correc tion, #502.02 (IV)(E) , authorize the Disciplinary

Board to extend a prisoner’ s RED by up to 30 % of the total leng

th of his sentenceif he is found guil ty of a disciplinary offense resulting in phy sical inju ry to an y perso n. It is unclear how the Board arrived at the exact extension it did. Mr. Williams appealed the Disciplinary Board’s action to the warden. He claimedthat the strip search was not done in conformity with the pro cedures set out in the Policy and Procedures Manual, and that he was not trying to injure the officer, but just to retrieve the cocaine. The warden affirmed the conviction on December 31, 1998. Mr. Williams subsequently filed a petition for declaratory

order with the Department of Correction, which was denied in a letter dated February 8, 2000. On March 9, 2000, Mr. Williams filed a “Petition for a Writ of Common L

aw Certiorari” i

n the Chancery Court of Davidson County. In paragraphs three and four of his petition, he recounted the filing an d the denial of his petition for declaratory order. Mr. Williams claimed that he completedhis ten year sentence in December of 1998, and wa s serving his three year sentence at the timeof his discip linary conviction, that the disciplinary board used par t of the expired ten year sentenceto calculate the

extension of his

RED, andthat elementary math would preclude a result of 2 years, 1 month and five days whe n calculating 30% of a three year sentenc e. On April 27, 2000, the Department filed a “Motion to Dismiss or for Summary Judgment,” accompan iedby a certified copy of Mr. Williams’ di sciplinary records, and the affid avit of Fa y e Claud, Manager

of Sentence Information Services for the Tennessee Department of Correction. The affidavit states that “[t]he RED extension was modified, effectiveApril 13, 2000, per approval of AssistantCommissioner Jim Ros e, from 2 yea rs, 1 month and 5 days, to 30% of the original maxi mumsentence.” I

t is not clear from

the affidavit whe

ther the “origi

nal maximum s entence ” refers to Mr. Williams’ original sentence of ten years, or to a maximum sentenceof thirteen y

ears, resulting from the addition of the tenyear sentence and the consecutive three year sentence. But as we discuss below, the Disciplinary Board’s action has become moot. Mr. Wil liams filed an “Answer to Motion to Dismiss,” to which the Department replied, submitting another affida

vit by Fay e Claud, which con

tained updated inf

ormation on Mr. Willia

ms’ offenses and se

ntences: 3. The sentence structure

is sixteen years - based on a string of consecutive sentences, calc

ulated as follows: Hamilton County case #188654, imposed May 12, 1992 - sentence 10 years. Hamilton County case #

215393, imposed July

31, 1997 - sentenc

e 3 years, consecutive to prior sentence, beginning February 23, 1999 the expirat ion of ca se #188654.-3- Bledsoe County case #571999, imposed January 26, 2000 - sentence 3 years, consecutive to case #215393. This latest crime was committed December 20, 1998, while assigned to minimu

m trusty secu

rity status,

therefore, the

parole dates for cases 188654 and 215393 were lost per TCA 40-28-123(b)(1). 4. The cu rre nt release eligibility date (RED) is January 18, 2003; a nd, the current expiration date is February 23, 2005. These dates may reduce each month that sentence credits are earned and retained. On June 29, 2000, the trial court filed a “Me morandum and Orde

r” dismissing Mr. Wi

lliams’ pe tition, on a determination that he was not entitled to the relief of either a writ of certiorari or a declaratory judgment. This appeal followed. II

. The Uniform Administrative Procedures Act (UAPA), Tenn. Code. Ann. § 4-5-101 et seq., sets out contest

e d case procedures for challenging certain decisions of state g overnment administrative bodies. Th ese procedur es include d eclaratory proc eedings , “in wh ich the rights, duties or privileges of a party are required by any statute or constitutional provision to be determined by an agency

after an opportunity for a hearing . . . .” Tenn. Code. A nn. § 4-5-102(3). Declaratory

proceedings would thus appear to be an appropriate

way to deal with this case, if i t were not for the

fact that Tenn. Co

de. Ann. § 4-5-106

specifically

excludes “disciplin

ar y proceedings for inmates under the supervision of the Department of Correction” from the contested case provisions of the UAPA. Our courts have been slow on occasion to recognize the inapplicability

of the UAPA to prison disciplinary proceedings. See, for example, Smith v. Donal Campb ell , 995 S. W.2d 116 (Tenn. Ct. App. 1999). However, several of our cases have specifi cally stated that a petition for writ of certiorari is the only proper vehicle for appealing the actions of a prison disciplinary board. Rhoden v. State Dept. of Correction , 984 S.W.2d 955 (Tenn. Ct. App. 1998); Bishop v. Conley , 894 S.W.2d 294 (Tenn. Crim. App. 1994). The writ of certiora

ri is limited in

scope; it does not examine the intrinsic correctness of the Board’s decision, but only covers an inquiry into whether the Board has excee

ded its jurisdiction or has acted illegally, fraudulently or arbitrarily. See Powell v. Parole Eligibility Review

Board , 870 S.W.2d 871 (Tenn. Ct. App.1994). The writ is also govern e d by statutory time constraints. A petition for the writ must be filed within sixty days from the entry or orde r c omplained of. Tenn. Code. Ann. § 27-9-102. Failure to file the petition within the sixty day period deprives the court of jurisdic ti on over the matter. Fairhaven Corporation v. Tennessee Health Facilities Commission, 566 S.W.2d 885 (Tenn. Ct. App. 1976). The Department

of Correction has instituted procedures for internal appeal of the decisions of the Disciplinary Board to the w arden, and in certain cases, to the commissioner. See-4-

#502.01(VI)(F), Policies and Procedures of the Department of Correction. The record indicates that Mr. Williams followed those proc edures by fi ling an appeal with the warden, who affirmed the decision of

the Board. If we take the warden’s affirma nce of December 31, 1998 as the order being app eal ed fr om, the n th e pet iti on o f Ma rch 9 , 20 00 h as t o be con sid ered unt ime ly. If, however, we deem

his petition for declaratory order to be the final step in the grievance process, as Mr. Williams urges us to do, then the deni al of that petition o

n February

8, 2000 would be the order appealed from, an d the petiti on for writ of certiorari would not be untimely. Mr. Williams argues that we

should grant him

this indulgence because he just followed procedures recommended

by others, and because he “is a lay man totally ignorant of the l aw and proper legal form.” Our courts generally give pro se plaintiffs greater latitude than represented plaintiffs when dealing with errors of legal form. See, for example, Jackson v. Aldridge 6 S.W.3d 501 (Tenn. Ct. App. 1999). This does not mean that the courts can assume jurisdiction over a case w here that jurisdiction has been lost as a matter of law. In this case, however, even if we found that

Mr. Williams filed his

petition within the si

xty day time limit, we believe he still would not be entitled to the relief he se

eks. Ms. Claud’s af

fidavits are not refuted by Mr. Williams, and they demonstrate to us that all the questions relate

d to his parole eligibility are either witho

ut merit or have be

come moot. For example, the modification of the RED extension re

ported in Ms. Claud’s first aff idavit supercedes the action of the Disciplinary Board. Therefore a review of the Board’s ac

tion would avail nothing. In addition, because he committed a crime while serving the three year sente

nce, his RED has n ecessarily changed. See Tenn. Code Ann. § 40-28-123(b)(1). Any argument that the Disciplinary

Board miscalculated his RED based on the circumstances that existed in 1998 is an argument about

a moot point. III. The order of the trial court is affirmed. Remand this cause to the Chancery Court of Davidson County

for further p roceedings consistent with this o pinion. Tax the costs o

n appeal to the appellant, Do

n Williams.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.