# FILED

February 23, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk BOBBY BLACKMON, ) ) Petitioner/Appell

ant, ) Appeal No.

) 01-A-01-9807-CH- 00361 v. ) ) Davidson Chancery DONAL CAMPBELL, et al, ) No. 97-3616-III ) Respondents/Appelle

es. ) )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

BOBBY BLACKMON, Pro Se TDOC # 68314 WTSP, Site 1, A2-41 P. O. Box 1000 Henning, Tennessee

PAUL G. SUMMERS Attorney General and Reporter MICHAEL E. MOORE Solicitor General ELENA J. XOINIS Assistant Attorney General Civil Rights and Claim

s Division 425 5th Avenue North Nashville, Tennessee 37243-0488 ATTORNEYS FOR RESPONDENTS/APPELLEES

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

# OPINION

This is an appeal by a

Tennessee prison in

mate from

the action of the trial court in decli

ning to issue a statutory writ of certiora

ri and in granting summary judgment of dis

mis sal of the appellant's petition for common law certiorari.
BobbyBlackmon is an i nmate in the T ennessee Departm ent of Correctionsfacility

at Henning, Tennessee. He was working in the kitchen of the f ac ilityand on Septembe

r 12, 1997, Offic

er William

Troup issued an incid

ent reportcharging Blackmon with larce n y. This char ge was dismisse

d by the disciplinary board because the incident report was not written by an appropriate reporting official. On Se pte mb er 19, 1997, the foo d service mana

ger, Don Roberts, reinitiated the incident report char ging B lackmon with la rceny for taking food from the kitchen area. At a hearing on this charge on Septem

ber 23, 1997, the disciplinary board det erminedthat the evidence did not support the charge of larceny and

therefore dism

issed same wit

h a recomm

endation that the reporting official reinstat e the charge based on violation of T.D.O.C. Institutional Policy.

On September 24, 1997, food service manager Don Roberts reinitiated the case on violation of T.D.O.C. Institutional Policy and the disciplinary board heard the case on September 26, 19 97. T he boar d found Blackmon guilty of violation of T.D.O.C . policy and

relieved Blackm

on of his job in the insti

tution kitchen.

After

exhausting administrative remedies Bla

ckmon filed his petition for writs of certior

ari. The chancellor corre

ctly dismissed the part of the petition seeking statutory certiorari on the grounds that the disciplinar y board in this ca

se acted in an administra

tive, quasi-judic

ial func tion from which statutory certiorari does not lie. Alexander

Friedmann

v. Charles Bass, et al , No. 01A01-9707-CH00031 (Tenn.App.M.S. Nov. 1 9, 1997). As to the application for common law certiorari the tr

ial court held: With respect to the

petitioner's claim for a common law-3- writ of certiorari, the petitioner asser ts that his due process rights have been violated beca use the Board relied on manufactured

evidence and violate

d TDOC policy

by not allowing t he petitioner to call w itnesses and failing t

o provide him with adequate notice of the charg e. Fi led in support of the motion is th e affidavit of Ja

m es Britt. That affidavit reveals that there is no genuin e issue of material fact that the Board act ed un lawfully or violated the petitioner's constitutional rights. Accordin gly , th e Court dismisse s the common law

writ of certiora

ri. The petitioner is not

entitled to due

process because the sanctions imposed

against him were not a

typical in rela

tion to the ordinary instanc

e of prison

life. See Sandin v. Conner , 115 S. Ct. 2293, 2301,

515 U.S. 472, 132 L . Ed. 2d 418 (1995). The r ecord before the Court establishes that following a hearing in which t he petitioner was a

llowed to testif y, the petitioner was found guilty of TDOC/Institutional policy for takingfood out of the kitchen withou

t permission. The Disciplinary Board reco mmend ed a job drop for the petitioner. The sanction does not prese nt the type of

atypical punishmen t con templated in Sandin which results in deprivation of due pr

ocess. With respect to the petitioner 's c laim that the disciplinary action taken against him viola ted the constitutional safeguards against double jeopardy, the Court dismisses that claim because a hearing befo re a prison disciplinary board is not judicia l. It is administrative. Ray v. State , 577 S.W.2d 681, 682 (Tenn. Crim. App. 1978). Thus, the constitutional guara

ntees against double j eopardy do not apply to disciplina

ry hearings in pr

ison.

The only "punishment" given the petitionerby the disciplinary board
was a removal fr

om his job in the prison kitchen. Suc h action did not violate

due process rights, even prior to Sandin v. Conner , 115 S.Ct. 2293, 515 U.S. 472, 132 L.Ed.2d 418 (1995). See Lyon v. Farrier , 727 F.2d 766 (1984) 8th C ir.; Newsom v. Norris , 888 F.2d 371, 374 (6th Cir. 1989).

Sandin is co nclusive a s to the due process issue and the trial court properly dism

issed the application

for writ of com

mon law certi

orari.

The prison disci plin ary board, be ing an administra

tive rather than a judicial tribunal, is no t subject to constitu tional guarantees a

gainst double jeopardy. Ray v. State , 577 S.W.2d 681, 682 (Tenn.Cr.App.1978).-4- In summary, if

a prisoner had no prop

erty interests

in a certain prison job that was protecte

d by due process r

ights prior to the

opinion of t he United States Supreme Cour

t in Sandin , it is difficult to i magine how such

right could exist subsequent to Sandin
. See Ish aaq v. Compton , 900 F.Supp. 935, 938-40 (W.D.Tenn.1995).

The action of the trial court is in all respect s aff irmed with cos

ts assessed to appellant

.

______ ___________

__________________

_ WILLIAM B. CAIN, JUDGE

CONCUR:

_______________________________ BEN H. CANTRELL, P .J., M.S.

_______________________________ PATRICIA J. COTTRELL, JUDGE