# FILED
October 14, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

LAWTIS DONALD RHODEN, ) ) Petitioner/Appellant, ) ) Appeal No. ) 01-A-01-9711-CH-00636 VS. ) ) Davidson Chancery ) No. 96-3341-I(II) STATE DEPARTMENT OF ) CORRECTION, ) ) Respondent/Appellee. )
APPEALED FROM THE CHAN CERY COUR T OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE CAROL L. MCCOY, CHANCELLOR

GARY L. ANDERSON University of Tennessee Legal Clinic 1505 W. Cumberland Avenue Knoxville, Tennessee 37996- 1810 Attorney for Petitioner/Appe llant JOHN KNOX WALKUP Attorney General and Repor ter JOHN R. MILES c/o Attorney General and R eporter 425 5th Avenue North Nashville, Tennessee 37243-0488 Attorney for Respondent/Appell ee

AFFIRMED AND REMAN DED

BEN H. CANTRELL, JUDGE CONCUR: TODD, P.J., M.S. KOCH, J.1 The question of the effect

of the California det

ainer on the petitioner’ s rights was n ot argued on appeal, so we do not deal wi th it in thi s opinion.

- 2 - 

## O P I N I O N

An inmate in the correction department soug ht a declaratory judg ment concerning his sentence credits. The C hancery Court of Davidson County

dismissed th e petition ( 1) because the proper avenue for relief was a wri t of certiorari to challenge the disciplinary action that caused the loss of his sentence credi ts, and (2) because the failure to g ive him sentence credits while he was under a California detainer di d not viola

te his equal

protection

rights. We affirm
. 1

I.

Lawtis Do nald Rhoden received a tw enty year sentence for r ape in 1985
. In August of 1995, while Mr. Rhoden was an inmate at the Turney Center, correction officers confiscated seven pamphlets w hich he had received through th e mail from an organization advo cating racial purity. Mr. Rhoden alleges that the written material does not advocate violence o r other illegal acti vity and is not

so racially

inflammatory that it would likely

cause violence within the prison.

The Turney Center Discip linary Board found Mr. R hoden guilty of possessing the literature, sentenced him to ten days in puni tive segregation an d recommended his placement in administrative segregation, maximum security status. Foll owing the Department’s appeal procedur es, the prison warden appr oved th e B oard ’s recommendation and the Commissioner of Correction signed off on the punishment on September 6, 1995.

While in maximum security Mr. Rhode n could no t earn the sixteen da ys credit he had been earning each month. In F ebruary of

1996 and April of 1997, Mr.2 Tenn. Code Ann. § 4- 5-322 p rovides fo r a review o f a conte sted ca se. A p etition for a decl arat ory judgment, after an agency has r efused a declara

tory or der, is au thorized by Tenn. Code Ann. § 4-5-225. For this r eason alone the petiti oner fail ed to state a cause of acti on.

- 3 - Rhoden’s security status was reduced in steps back to minimum security, but he lost sentence credits in each step by not being able to earn the maximum credits available if he had been in minimum security. H e alleges that in all he lost seven months of credits for the possession of constitutionally protected ma terials.

In t he meantime, in August of 1996, Mr.Rhoden filed a petition for a declaratory order with the Department of Correction seeking a return of the sentence c redits lost as a result of the disc iplinary proceeding . The Department deni ed th e petition in a letter dated Aug ust 27, 1996.

On October 25, 1996, Mr. Rhod en file d a petition for review in the Chancery Court ofDavidson County challenging the loss of his sentence credits. The petition recited that it was fil ed pursuant to Tenn. Code Ann. § 4-5-322. 2 The Departmentof Correction filed a motion to di smiss on the groun ds th at the court lacked jurisdiction over

the subject matter andthat the petition failed to state a cause of action. The court dismissed the petition because it w as essentially an action challenging the results of the disciplinary proceeding and a review of that procee ding should have been sought with in sixty days by a petition for the common law writ of certiorari.

II.

A prisoner disciplinary proceeding cannot be reviewed directly under the Uniform Administrative Procedures Act because the Act removes su ch proceedings from the definition of a contested case. Tenn. Code Ann. § 4-5-106(b). The proper vehicle for challenging a disciplinary action is a petition for a comm on law writ of certiorari, and the petitio n must be filed within six ty days of the challeng ed action.- 4 -

Bis hop v. Conley

, 894 S.W.2d 294 (Tenn. Cr. App. 1994). See Tenn. Code Ann. § 27-9-102.

Mr. Rhoden alleges, howev er, tha t he is not seeking a review of the disciplinaryproceedings. Instead he “ is attacking the unlawful actions of the T.D.O.C .; and the Commissioner of the T.D.O.C. in punishing him for mere po s session of constitutionally protected literature.” We fail to see the distinction. But giving him the benefit of the doubt, the proper procedure for attacking a rule of the Department is set out in Tenn. Code Ann. § 4-5-223.

Tenn. Code Ann. § 4-5-223(a)of the UAPA allows any person affected bya state statute or an order or rule of a state agency to petit ion the agency fo r a declaratory order as to the validit y or applic ability of the rule, stat ute, or order. The agencycan then (1) convene a c on tested case hearing and issue the declaratory order, Tenn. Code Ann. § 4-5-323(a)(1), or (2) refuse to issue the order, Tenn. Code Ann. § 4-5-223(a)(2). In ca ses where the agency

refuses to iss ue the declaratory order, the affected person may seek a declaratory judgment in the Chancery Court of Davidson County. Tenn. Code Ann. § 4-5-224(a).

Mr. Rhoden’s petition does not state a claim for a declar atory judgment under the UAPA. He is not challenging a statute or an agency rule or or

der -- except the order resulting from the d isciplinary procee ding. In effect he is challeng ing the f actual conclusion arrived at during the discipli nary proceeding that the literature foun d in his possession viol ated th e Departme nt’s rule s. That d etermin ation sho uld have been reviewed by a dire ct review of the disc iplinary proceedi ng.

This case can be distingui shed from Gilbreth v. Bradley

, 01-A-01-9402- CH-00083 (Nashville, September 21 , 1994), in which the inmate did seek a declaratory judgment concerning the app lication of a s tatute to inmates sentenced- 5 -

under prior law. The issue in Gilbreth was not whether the

prisoner should have been disciplined but whether the p u nishment imposed by the Department exceeded its authority under the statute in question.

The judgment of the trial court is affirmed an d the ca use is remanded to the Chan cery Court o f Davidso n County f or any fur ther proc eedings n ecessary. Tax the costs on appeal to the appe llant.

_________________________________ BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_______________________________ WILLIAM C. KOCH, JR., JUDGE