# FILED
April 24, 1998 Cecil W. Crowson Appellate Cou rt Clerk TERRY COMPTON, ) ) Davidson Chancery Plaintiff/Appellant, ) No. 96-1782-II ) VS. ) Appeal No. ) 01A01-9710-CH-00539 DONAL CAMPBELL, COMMISSIONER,) TENNESSE E DEPARTMEN T OF ) CORRECTION, ) ) Defendant/Appellee. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE CHANCERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE HONORABLE CAROL L. Mc COY, CHANCELLOR
Terry Compton, #77594 N.W.C.C. Route 1, Box 660 Tiptonville, TN 38079 PRO SE/PLAINTIFF/APPEL LANT Sohnia W. Hong, #17415 Assistant Attorney General Second Floor, Cordell Hull Building 425 Fifth Avenue

North Nashville, TN 37243-0488 ATTORNEY FOR DEFENDANT/APPELLEE

MODIFIED, AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE WALTER W. BUSSART, JUDGE-2-

TERRY COMPTON, ) ) Davidson Chancery Plaintiff/Appellant, ) No. 96-1782-II ) VS. ) Appeal No. ) 01A01-9710-CH-00539 DONAL CAMPBELL, COMMISSIONER,) TENNESSE E DEPARTMEN T OF ) CORRECTION, ) ) Defendant/Appellee. )



## O P I N I O N

This is an action by a prisoner in the custody of the D epartment of Correction

challenging disciplinary action resulting from his misconduct while in the status of minimum security. He

was transferred to medium security. His complaint is essentially that the D epartment is not impartial in implementing its “policies” in re

gard to transfe

rring prisoner

s from o ne “ security status” to another.

The petitioner filed the usual petition for judicial review, and the Department moved to dismiss for failureto state a claim for which relief can be granted. The Trial Court sustained the motion, stating: Petitioner has fi led a declaratory judgment action seeking review of his 36 month medium custody classification that he received in March of 1996, as a result of a disciplinary

report. Petitioner alleges in his Comp

lain t that he has been incarcerated

since 197 5. In September of 1994, Petitioner was assigned to the N

ashville Community

Servic e Cen ter (NCS C) in a minimum custody level. In February of 1996, Petitioner rece ived a Class “B” disciplinary report and was found guilty of such report in March of 1996. As a result of such finding, h e was reclassified to a medium custody level pursuant to TDOC Policy 404.07§ VI(K) ( 1)(b) and transferred

from NCSC to the Northwest Correctional Center. Peti tioner has been informed by Respondent Tennessee Department

of Corr ecti on (TDOC) that he will remain at mediumcustody level for 36 months. He asserts in his Complaintthat, as long as he does not receive any additional disciplinaries,

he should be reclassified to the minimum custody level at the expiration of 18 months pursuant to TDOC Policy Nos. 404.07§§ II&V, 401.05§ V, and401.06 § V. He asserts that the TDOC’s reliance on 404.07 §-3- VI(K)(1)(b)to extend his medium custody classification to 36 months is arbitrary

and capricious,

and a denial o

f his equal protection and d ue process rights. He further asserts that 401.06 § VI(K)(1) (b) is “inoperable” b ecause it confli

cts with other TDOC policie

s. Respon den tDonal Campbell has filed a Motion to Dismiss for failure to sta te a claim. For the reasons stated herein, this Motion will be granted. First, while the UAPA do es provide for declaratory judgment review over s tate ag ency rules pursuant to T.C.A. § 4-5-224, this does not

include TDOC policies appl icable to inmates only. T.C.A. § 4-5-102(10) def ines a rule as follows: “Rule” means ea ch agency statement of applic ability

that implements or prescribes la w or polic y or describes the procedure or practicerequire men ts of an agency. “Rule” inclu d es the amendment or repeal of a prior rule, but does not include: (A) Statements conce rn ing only the intern al management of state government and n o t affect ing private r ights , privileges, or procedure s available to the public... Because TDOC prisoner poli

cies do not affect rights and privileges available to the g eneral public, th

ey are not “

rules” subject to adeclaratory action under the UAPA. Mandela v. Reynolds , No. 01 A0 1-9004-CH-00139 (Tenn. App. Dec. 5, 1990 ); Na’im v. Reynolds , No. 01A01-9003 -CH-00114 (Tenn. App. June 6, 1990). Acco rdin gl y, this Court has no jurisdiction over the po lic y Petitioner i s challengi ng. Petitioner’s ame ndment to his Complaint to pro vide that all references to TDOCpolicy wer e “intended to

be a reference to the State of Tennessee Regulation containing any similar number to that of the policy

mentione d and from which the citedpolicy was developed” does n ot save Petitioner’s Complaint because

there are no suc

h regulations. Even if this C ourt had jurisdiction over TDOC policies , Petitioner has failed to state a claim. In order t o prevail on his due processclaim, Petitioner must assert that he has been deprived of

a liberty int

erest entitled to d

ue process protection. In Sandlin v. Conner , 115 S. Ct. 2293, 2300 132 L.Ed. 2d 418 (1995), the Supreme Court held that only those administrative actions which i mpose “a typical and significant hardship on the inmate in relation to the ordinary incidents of prison life” are subject to due proc es s scrutiny. A reclassificationto medium custody from minimum custody is notsuch a hardship and is therefore

not subject to due pr

ocess protection.-4- Pet iti oner’s other claims regarding the additional 18 months mediumsecurity c lassification ar

e also without meri

t. Petitioner alleges that

he is entitled to an automatic reduction to a mi nimum custody level at the expiration of 18 mont h s (absent further disciplinary actions) by virtue of 401.06 § V which requires that the CAF score be used to determine custody classification un

less there is an “authorized override” of the CAF score. H owe ver, 404.07 § VI(K)(1)(b), which specifically

dea ls wi th minimum custody classification and was adopted after the ab ove referred 401.06 § V CAF score pol icy, states that a priso ner is not eligible for minimum custody classification for 36 months after a Class A or B disciplinary

infraction. Petitioner’s disciplinary action was a Class B infraction. Thus, Petitioner is not entitled to the CAF derived minimum cus

tody level f

or at least 36 month

s. For the reasons state

d above, Responde

nts Motion to Dismiss will be granted. Litigation costs ar e taxed to Petitioner, and all other costs are waived.

TCA§ 4-5-224(a) sta

tes that a reviewing cour

t may enter

a declaratory

judgment if

it is determinedthat

a statute, rule, order or

its application interferes with or threatens to impair legal rights.

TCA §§ 41-21-202 and 504 confer upon the Department the discretion to crea te and administer

a prisoner

classification sy

stem. McCloud v. Bradley , Tenn. App. 1986, 724 S.W.2d 362. TCA § 4-5-102(10), quoted by the Trial Judge above, states that a “rule” does not include (A) statement concerni ng on ly the internal management of state government and

not affecting p

rivate rights,

privileges, or procedures available to the general public.

The “policie s” of th e Corrections Department are “statements concerning only the in t ernal management of the Department” and do not affect private rights, privileg es or procedures available to the general public.

The “Security Status” of prisoners incar cerated in

an institution controlled by the Dep art men t of Cor rect ion is d ete rmi ned by th e “po lic ies ” of t he D epar tme nt o n a p ris one r-b yprisoner basis. Each priso

ner is an individua

l, and his “Sec uri ty St atu s” i s de ter min ed b y a determinatio

n of th e security risk represented by each individual prisoner. Members of the-5-

general public are not subject

to such individual evaluation. Therefore, by statute, the policies controlling such evaluations of prisons are not rules subject to judicial review.

Such individual evaluation and disciplinary procedures do not involve a liber

ty interest of constitutional prop

ortions. Sandin v. Conner , 515 US 472, 115 S.Ct. 2293, 132 L.Ed 2d 418 (1995).

The judgment of the Trial Court is modified to require the petitioner to pay all Trial Court
costs. As modified, the judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the app

ellant. The cause is remanded to the Trial Court for collection of costs accrued in that Court.



### MODIFIED, AFFIRMED AND REMANDED.

___________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR:

_____________________________ BEN H. CANTRELL, JUDGE

_____________________________ WALTER W. BUSSART, JUDGE