FILED

February 23, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

BOBBY BLACKMON, )

)

Petitioner/Appellant, ) Appeal No.

) 01-A-01-9807-CH-00361

v. )

) Davidson Chancery

DONAL CAMPBELL, et al, ) No. 97-3616-III

)

Respondents/Appellees. )

)

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 Claims 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 inmate from the action of the

trial court in declining to issue a statutory writ of certiorari and in granting

summary judgment of dismissal of the appellant's petition for common law

certiorari.

Bobby Blackmon is an inmate in the Tennessee Department of

Corrections facility at Henning, Tennessee. He was working in the kitchen of the

facility and on September 12, 1997, Officer William Troup issued an incident

report charging Blackmon with larceny. This charge was dismissed by the

disciplinary board because the incident report was not written by an appropriate

reporting official. On September 19, 1997, the food service manager, Don

Roberts, reinitiated the incident report charging Blackmon with larceny for

taking food from the kitchen area. At a hearing on this charge on September 23,

1997, the disciplinary board determined that the evidence did not support the

charge of larceny and therefore dismissed same with a recommendation that the

reportingofficialreinstate 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, 1997. The board found Blackmon guilty of

violation of T.D.O.C. policy and relieved Blackmon of his job in the institution

kitchen.

After exhausting administrative remedies Blackmon filed his petition

for writs of certiorari. The chancellor correctly dismissed the part of the petition

seeking statutory certiorari on the grounds that the disciplinary board in this case

acted in an administrative, quasi-judicial function from which statutory certiorari

does not lie. Alexander Friedmann v. Charles Bass, et al, No. 01A01-9707-CH00031 (Tenn.App.M.S. Nov. 19, 1997). As to the application for common law

certiorari the trial court held:

With respect to the petitioner's claim for a common law
-3-

writ of certiorari, the petitioner asserts that his due process

rights have been violated because the Board relied on

manufactured evidence and violated TDOC policy by not

allowing the petitioner to call witnesses and failing to

provide him with adequate notice of the charge. Filed in

support of the motion is the affidavit of James Britt. That

affidavit reveals that there is no genuine issue of material fact

that the Board acted unlawfully or violated the petitioner's

constitutional rights. Accordingly, the Court dismisses the

common law writ of certiorari.

The petitioner is not entitled to due process because the

sanctions imposed against him were not atypical in relation

to the ordinary instance of prison life. See Sandin v. Conner,

115 S. Ct. 2293, 2301, 515 U.S. 472, 132 L. Ed. 2d 418

(1995). The record before the Court establishes that

following a hearing in which the petitioner was allowed to

testify, the petitioner was found guilty of TDOC/Institutional

policy for taking food out of the kitchen without permission.

The Disciplinary Board recommended a job drop for the

petitioner. The sanction does not present the type of atypical

punishment contemplated in Sandin which results in

deprivation of due process.

With respect to the petitioner's claim that the

disciplinary action taken against him violated the

constitutional safeguards against double jeopardy, the Court

dismisses that claim because a hearing before a prison

disciplinary board is not judicial. It is administrative. Ray v.

State, 577 S.W.2d 681, 682 (Tenn. Crim. App. 1978). Thus,

the constitutional guarantees against double jeopardy do not

apply to disciplinary hearings in prison.

The only "punishment" given the petitioner by the disciplinary board

was a removal from his job in the prison kitchen. Such 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 Cir.; Newsom

v. Norris, 888 F.2d 371, 374 (6th Cir. 1989).

Sandin is conclusive as to the due process issue and the trial court

properly dismissed the application for writ of common law certiorari.

The prison disciplinary board, being an administrative rather than a

judicial tribunal, is not subject to constitutional guarantees against double

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

In summary, if a prisoner had no property interests in a certain prison

job that was protected by due process rights prior to the opinion of the United

States Supreme Court in Sandin, it is difficult to imagine how such right could

exist subsequent to Sandin. See Ishaaq v. Compton, 900 F.Supp. 935, 938-40

(W.D.Tenn.1995).

The action of the trial court is in all respects affirmed with costs

assessed to appellant.

____________________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

_______________________________

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

_______________________________

PATRICIA J. COTTRELL, JUDGE