### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 11, 2001 Session
ALEXANDER

L. BAXTER
v. TENNESSEE DEP

ARTMENT OF C ORRECTION
Appeal from the Chancery Court for Davidson County No. 00-1729-II Carol L. McCoy, Chancellor

No. M2000-02447-COA-R3-CV - Filed April 23, 2002

This case involves a petition for writ of certiorari based on a prison disciplinary pr oceeding. The inmate was f o und guilty o f a discip linary inf raction by the pri son discip linary bo ard. Af ter his appeal to the prison warden was denied, the inmate filed a petition for a w rit of certiorari, alleging
numerous violations of his due process rights. The trial court dismissed the petition and Baxter now appeals

. We affirm, finding that the sanctions imposed for the infraction did not rise to the level of interfering with the in

mate’s pr otected liberty in

terest a nd, there fore, di d not t rigger d

ue proce ss protections. Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Chancery Court Affirmed

H OLLY K IRBY L ILLARD , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined. Alexander L. Baxter, Mountain City, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore , Solicitor General, and Mark A. Hudson, Se

nior Counc il, Office of the Attorney General, Na shville, Tennessee, for the appellee, Tennessee Department of Correction.

OPINION Petitioner/Appellant

Alexander Baxter (“Baxter”) is a n inmate in the custody of the Respondent/Appellee TennesseeDepartment of Correction (“TDOC”). TDOC has c ontract ed with the Corrections Corpora

tion of Ame

rica (“ CCA”) to op erate th e South Cen

tral Corr ectiona l Facility (“South Central”) in Clifton, Tennessee, at which Baxter has been incarc erated since April 5, 2000.1 Th e reco rd d oes n ot ind icate w hy B axter ma de th ese re que sts.

2 Although it i s not cl ear from Baxter’s petit ion, pres umably the correct ions offi cer meant that Baxter was moving back i nto the genera l pri son popul ati on. -2- Inmate disciplinary matters at South Central are handled pursuant to TDOC’s Uniform Disciplinary Procedu res, TDOC Policy #9502.01, which “governs the manner in which disciplinary heari ngs shall be conducted, outlines an accused’s rights, and establishes a disciplinary board.” Mandela v. Campbell , 978 S.W.2d 531, 532 (Tenn. 1998). The purpose of the Uniform Disciplinary Procedures is “to provide ‘a fair and impartial tribunal’ to hear ‘all disciplinary charges brought against inmates of the TDOC.’” Id. (quoting TDOC Policy #9502.01(IV)(A)).

When Baxter first arrived at South Central, he was place d in punitive segregation to serve the remainder of a disciplinary sentence imposed at his previous facility, Wayne County Bootcamp. While serving his sentence in punitive segregation, Baxter frequently requested verbal ly and i n writing that prison officials place him in protective custody

. 1 On the morning of April 9, 2000, Baxter noticed a senior c orrect

ions offic er stand

ing outside

his cell door. Baxter knocked on the cell door in an atte

mpt to get the offic er’s a ttention, so that he could find out the status of his prior request s to be moved into protective custody. Baxter alleges that the corrections officer, in response,
was verbally abusive and told Baxter that he “was moving out of here today.” 2 Later that evening, Baxter received a disciplinary report cha rging him with interfering with the officer’s duties.

On April18, 2000, a

n inmate a

dviser c ame to Bax

ter’s ce ll and told h

im that, if he ple d guilty to a Class C inf

raction , he would

be sente nced to the time he had already served in punitive segregation. Ba xter told the inmate advisor that he was not interested in pleading guilty to an offense he never committed. Baxter said that he wanted to go before the disciplinary board for a formal disciplinary hearing. Consequently, Baxter was taken before the disciplinary board. At his appearanc e before the disciplinary board, Baxter handed an Inmate Witness Request form to the disciplinary board chairman, Shirley Ca

mpbell. The form indicated that Baxter’s cellmate had witnessed the incident withthe corrections office r outside Baxter’ s cell, and that Ba xter inte nded to ca

ll his cell mate as a witness during the disciplinary procee ding. Camp bell ref used to gr ant Baxte r’s req uest. Camp

bell then asked Baxter

if he waived his right to have the reporting officer present for the hear ing. Baxter responded that he did not. Subsequently, Baxter was escorted back to his ce ll.

Ten minutes af

ter bein g returned to his cell, Baxter was brought back to the disciplinary hearing. At this poin

t, he alleges, Campbell stated at the hearing that Baxter had not submitted any request s for witnesses. Baxter told Campbell that her statement was untrue and showed her his Inmate Witness Request

form. Baxter says that Campbell told him to “shut up” and that he was then escorted back to hi s cell a second time . A few minute s late r, Campbell came to Baxter’s cell and3 Alth oug h it is unc lear fro m th e reco rd, ap pare ntly a con viction of a C lass B o ffen se can carry wo uld have

more severe sanct ions than a convicti on of a Class C offense.
-3- presented him with a report of the disciplinary board’s findings. Campbell told Baxter, “you’ve got a Class B now.” 3

Baxter soughtan internal appeal to the prison warden; this was denied. Baxter then filed a lawsuit seeking a

writ of c ertiora

ri from th

e Davids on County Ch ancery Court. In h

is lawsuit, Baxter requested that the disciplinary conviction be expunged fr om his record, that

the trial court issue an injunction restraining prison officials from taking retaliatory conduct against him, and that he be awar

ded compe

nsatory a nd punitive

damages . Baxter d

id not alle ge in

his petition that any sanctions were imposed for the infraction.

In response

to Baxter ’s compla

int, TDOC f

iled a moti on to dismiss . TDOC’s m otion to dismiss asserted

that Baxter’s sanction from the disciplinary proceeding was the time that he se rved in punitive segregation awaiting his hear ing. Baxte

r does not dispute th

is on appeal. Consequently, this appears to be the only sanct io n resulting from the hearing. In TDOC’s motion to dismiss the p etition, TDOC argued that the sanctions imposed on Baxter did not amount to an “at ypical an d significant

hardship ” such tha

t Baxter w as entit

led to due process protections at his disciplinary hearing. See Sandlin v. Conner , 515 U.S. 472 (1995). The trial court agreed and dismissed Baxter’s petition by order dated September 26, 2000. From this order, Baxter now appe als.

On appeal, Baxter argues, inter alia , that he was not allowed to be present for the hearing or present witnesses and other evidence in his behalf and, there fore, the heari ng was cond ucted in violation of both hisdue proc ess rightsas well a s “rights” secure d him under

TDOC’s U niform Disciplinary Procedu

res. Baxter also contends that he is not guilty of interfering with an officer’s duties because

the offic er’s dut

ies were to “see to the needs of the inmates under his care .” Baxter argues further that, by not following its own proc edures r equiring a “commis sioner’ s designe e” to observe all Class B d

isciplina ry hear ings, TDO C violated

the Priva te Prison Contracting Act, Tenn. Code Ann. § 41-24-101 et seq. (1997), which pr ohibits delegating inmate disciplinary responsibilities to a prison contractor. See Tenn. Code Ann. § 41-24-110(5). Lastly, Baxter argues that his constitutionally protected right of meaningful accessto the courts was denied by TDOC’s failure to provide him with sufficient legal resources to eff ectively litigate this case.

A motion to dis miss for f ailure to state a c laim tests t

he lega l suffici ency

of th e plaintiff’ s claim. Riggs v. Burson , 941 S.W.2d 44, 47 (Tenn. 1997). The grant of a motion to dismiss may be affirmed only if the all egatio ns in the pl aintiff’ s complain t, even if taken astrue, fa

il to state a claim upon which the

plaintiff would be entitled to relief. Stein v. Davidson Hotel Co. , 945 S.W.2d 714, 716 (Tenn. 1 997). The

refore , in revie

wing a t rial cou rt’s gr ant of a m

otion to dism

iss, all f actua l allegations are taken as true, and the trial court’s c onclusions of law are re viewed de novo on the record with no presumption of correctness. Doe v. Sund quist , 2 S.W.3d 919, 922 (Tenn. 1999).-4-

An inmate may only obtain judicial review of TDOC’s disciplinary proceedings through the
common law writ of certiorari. Bishop v. Conley , 894 S.W.2 d 294, 296 (Tenn. Crim. App. 1994). Thus, the scope of review must be within the parameterspermitte d for a w rit of certiorari. Brown
v. C. O. I. Majo

rs , No. W2001-00536-COA-R3-CV, 2001 Tenn. App. LEXIS 948, at *6 (Te nn. Ct. App. December 19, 2001). The scope of re view is limited to whether the i nferior tribunal has exceeded its jurisdiction, or acted illegally, fraudulently or arbitrarily. Powell v. Parole Elig ibility Review Bd. , 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994). A petition for writ of certior ari merely seeks to have the record

filed with the court so that it may review the proceedings and dec ision of the inferior tribunal. Seals v. Bowlen , No. M1999-00997-COA-R3-CV, 2001 Tenn. App. LEXIS 547, at *6 (Tenn. Ct. App. July 26, 2001). The scope of review un der the com mon law writ of certiorari is very narro w. “If the agency or board has r eached its decision in a constitutional or lawful manner, thenthe decision would not be subject to judicial review.” Powell , 879 S.W.2d at 873. Theref

ore, on a ppeal, th is Court should addre ss only whethe r the petition sets out sufficient factual allegations which , if prove n, would show that TD OC exceeded its jur isdiction o

r, in conducting the disciplinary hearing, TDOC acted illegally, fraudulently or a rbitrarily.

We first add

ress Baxter’s argument

on appea l that the d

isciplina ry proceedings vio lated his constitutional right to du e proce ss. This de pends on th

e due pro cess rights to which the inmate was entitled. Armstrong v. Tennesse e Dep’t o f Corr. , No. M2000-0 2328-COA-R3-CV, 2001 Tenn. App. LEXIS 428, at *7 (Tenn. Ct. App. June 7, 2001). Baxter asserts that he was entitled to all the “rights”provided

in TDOC Policy #9502.01 including the right t o (1) be p resent a nd testify on his
own behalf, (2) have

the repo rting off icer pr esent, (3) call relevant witnesses in his behalf, and (4) have his guilt proven by a preponderance of the evidence. For purposes of reviewing the grant of TDOC’s motion to dismiss, we take as true Baxter’s allegations that the disciplina

ry board failed to follow the procedural requirements of TDOC Policy #9502.01.

An allegation that TDOC’s disciplinary proceeding violated the inmate ’s due pr

ocess rights is an allegation that TDOC acted arbitrarily and illegally and, thus, wou ld be reviewable under a petition for common la w writ of certiorari. Seals v. Bowlen , M1999-00997-COA-R3-CV, 2001 Tenn. App. LEXIS 547, at *19 (Tenn. Ct. App. Jul y 26, 2001) . Howeve

r, Baxter ’s petitio n fails to allege that any punitive sanctions weretaken against h im; instea d, he asse rts that he had a “r ight”
or “liberty interest ” inthe procedural requirements mandated in the TDOC Unifor m Disciplinary Procedu res, regardless of the sanction imposed. Notwithstanding, mandatory language in statutes
or prison re gulationsdo not in and of thems elves cr eate a liberty int

erest on behalf o f inmatesin state custody. Sandin v. Conner , 515 U.S. 472, 483 (1995). Rather, an inmate’s liberty in terest isonly implicated, and due process protections are only triggered, w here the s anction s imposed after a disciplinary hearing

are “a n atypica l and signi ficant h ardship

on the inma

te inrelation to the ordinary incident s of prison life.” Id. at 484. In thi s case, B axter f ails to all ege that any type of disciplinary sanctions were ta

ken aga inst him, let alone the type of “atypical and significa nt hardsh ip” that w ould4 This i s t rue re gardl ess of whethe r we consi der as the sancti on the fact that Baxter spent ten da ys i n punit ive segre gati on prior to the d isciplina ry h earin g. See San dlin , 515 U.S. 472 (fi nding that thi rty da ys i n punit ive s egregat ion
was not an “atypical and significant hardship” ); Seals v. Bowlen , No. M1999-00997-COA-R3-CV, 2001 Tenn. App. LEX IS 547 (Ten n. Ct. A pp. Ju ly 26 , 200 1) (fin ding that te n d ays p unitiv e seg rega tion, in creas e in inm ate’s se curity sta tus from minimum to clos e, tra nsfer to a maxi mum secur it y faci li ty, los s of one month of good beha vior c redi ts, and a $5 discip linary fee w as no t an “a typic al and signific ant h ardsh ip”).
-5- meet the criteria established by Sandlin

. 4 Accordingly due process protections were not trigger ed and the de

ficienc ies in the d

isciplina ry hear ing alleg ed by Baxt

er were not uncon stitutiona

l.

Baxter argues t hat the decision of

the discip linary bo ard wasneverth eless “illegal” b ecause TDOC failed to abi de by i ts own disc iplinary p rocedur es, and th at consequently he may obtain judicial review of the decision through a writ of certiorari. In support of his argument, Baxter cites this Court’s decision in Davis v. Rose , No. 01-A-01-9610-CH-00494, 1997 Tenn. App. LEXIS 138 (Tenn. Ct. App. Feb. 28, 19 97). Baxt er argu es that Davis v. Rose includes language indicating that,
even where the inmate does not premise his appeal on a constitutional violation, TDOC was obligated to c om ply with its procedural rules for disciplinary hearings. Id. at *10-11. However, after examining the fac ts alleged in the petition, the Court in Davis concluded that, while the disciplinary procee dings wer e in some r

espectsdeficient, they were not so deficient as to require a reversal of the trial court’s denial of the inmate’ s petition. Id. at *12.

The issue wasclarifi ed in this Court’s recent opin ion in Ahkeem v. Campbell , No. M2000- 02411-COA-R3-CV, 2001 Tenn. App. LEXIS 815 (Tenn. Ct. App. November 2, 2001). In Ahkeem , the Court addressed whether an inmate’s petition for writ of certiorari could be granted solely on the grounds that TDOC failed to follow its own disciplinary policies. The Court first stated that “an allegation of illega

lity sufficient to support judicial review of the board’s decision [via c ommon law writ of cert iorari] must involve a failure to follow ‘essential requirements of the law.’ ” Id. at * 15. It concl uded that : [T]he “essential requirements of the law” in this area are those established by the due p ro cess clause. Where the Tennessee legislature has not imposed more stringent require ments on prison disciplinary procedures, w e decline to do so. W ithout a constitutional or statutory “essential requirement”, the writ of cer tiorari proce du re does not authorize the cour ts to crea te one. Therefore, a failure to suff iciently allege
a due proces s vio lation in the conduct of prison disciplinary proceedings is also a failure to allege , under c ommon law w rit of ce rti orari gr ounds, that a disciplinary boardhas acted illegally by not following the e ssential requirements of the law. Ac cord ingly, allegations that the board acted illegally by failing to follow TDOC procedures do not, i n and of th emselve s, support

issuance of a writ of cert iorari to review the legality of the board’s decision.5 The holdi ng in Ahkeem does not li mit the wri t of cer tior ari s olely t o cases invol ving due proce ss violations,

as in a f ootnot e in t

he opini on: “[ w]e do not i mply that a st atut ory viol ati on cannotcon stitute a fa ilure to con form to the e ssent

ial requi rements of t he la w.” 2001 Tenn. App. LEXIS 815, at *22 n. 8.
-6- Id. at 2 1-22. Thus, the disciplinary proceeding is not “illegal” within the meaning of the statut e regarding the common law writ of certiorari simply because

the discip linary bo ard fai led to com ply withits own internal disciplinary policies; the petition for a writ of certiorari must sufficiently allege
a violation of due process. The Court in Ahkeem noted: “In the context of prison disciplinary procee dings, both the Te nnessee Supreme C ourt and the United States Supreme Court have recognized

the broaddiscretion necessary to allow prison officials to perform their responsibilities.” Id at *21. See a lso Tenn. Code Ann. § 4-6-102 ( “The man agement and gove rnment of the state penitent iarie s for adults are vested in the department of corr ection. It has all the power necessary for the full andefficient

exercise of the executive, administrative and f iscal supervision over all such institution s, except a s otherwi se expre ssly provi ded.”). Under these cir cumstanc es, we mu st conclude that Baxter’s allegation that TDOC violated its own internal disciplinarypolicies does not amount to a

failure to follow “the essential requirements of the law” and is, therefore, insufficient to support the issuance of a writ of certiorari.

Baxter also alleges on appeal that the hearing was “illegal”because i t was cond ucted in violation of the TDOC disciplinary policy which provides that a TDOC em ployee, k nown as a “commissioner’s designee ,” is to “o bserve a ll Class A andB disciplinary hearings, and approve or modify all recommendations of the disciplina ry b oard at the time of the hearing.” TDOC Policy #9502.01(VI)(D)(2). The commissioner’s designee is “authorized by the commissioner to serve a s the approving authority for specified actions occurring at pr ivately contracted TD OC facilities.” TDOC Policy #950 2.(IV)(I). The disciplinary board, which is made up of private contractor employee s, “conducts hearings, reviews the evidence , and makes recommendat ions t o the [commissioner’s designee] who must approve or modify the board’s rec ommendation.” Mandela
v. Campbell , 978 S.W.2d 531, 533 (Tenn. 1998). The Private Prison Contracting Act, Tenn. Code An n. § 41-24-101 et seq., prohibits TDOC from delegating responsibility for inmate disciplinary actions to a prison contractor. Tenn. Code Ann. § 41-24-110(5). 5

In Mandela the Court h

eld that w hileTDOC Policy #9502.01 allowed for private contractor employees to participate on disciplinary boards and make recommendations, “[t]he final appr oval of the discip linary recommenda tion[s] r ested sol ely with th

e TDOC commiss ioner’s designee.” Mandela , 978 S.W.2d at 533. Thus, there was no violation of the statute so long as TDOC retained the sol e authority to approve or modify any recommendation made by the disciplinary boa rd. Id. In this case, Baxter does not allege that TDOC did not app rove the recommendation of the disciplinary board, only that the commissioner’s designee was not present at his hea ring. Thi s is insufficient to support the issuance of a writ of certiorari.

Baxter also alle ges that th

is Court should review and reverse the decision of the disciplinary boardbecause (1 ) an officer’s duties are to see to the needs of inmates, and thus Baxter could not-7-

be found to have interfered with the officer’ s duties, and (2) the prison’s inadequate library resources prevented him from r

esponding

more stro ngly to TDO C’s motion to dismiss

. Baxter cites no pertinent authority in support of his position. These issues are without merit.

The decision

of the tri al court

is affirmed. Costs are taxed to the appellant, Alexander Baxter, for which execution may issue if necessary.

___________________________________ HOLLY KIRBY LILLARD, JUDGE