# FILED

February

7, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk MICHAEL K

INDELL, ) ) Plaintiff/Appellant, ) ) Wayne County Chancery ) No. 9689 VS. ) ) Appeal No. ) 01A01-9610-CH-00495 JIM H. ROSE, Assist. Commissioner ) of the Tenne ssee De

pt. of Corr

ections, )

) Defendants

/Appellees. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEA L FROM TH

E CHANCER

Y COURT F OR WAYNE C OUNTY AT WAYNESBO RO, TENNESSEE HONORABL E JIM T. HA MILTON, J UDGE

Michael Kindell #209149 CCA/SCCF P.O.Box 279 Clifton, TN 38425 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT
Abigail Turner Frankie K. Stanfill Asst. Atty. Genera

l Law Office of Tom Anderson 404 James Robertson Parkway P.O. Box 900 Parkway Tow ers, Suite 2000 Lexington, TN 38351 Nashville, TN 37243-0488 ATTORNEYS FOR DEFENDANTS/APPELL EES



### REVERSED AND REMANDED.

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR: SAMUEL L . LEWIS, JUDGE BEN H. CANTRELL ., JUDGE-2-

MICHAEL K

INDELL, ) ) Plaintiff/Appellant, ) ) Wayne County Chancery ) No. 9689 VS. ) ) Appeal No. ) 01A01-9610-CH-00495 JIM H. ROSE, Assist. Commissioner ) of the Tenne ssee De

pt. of Corr

ections, )

) Defendants

/Appellees. )



### O P I N I O N

The captioned petitioner, an inmate of an institution operated by a private contractor for the Tennesse e Depar

tment of Co

rrectio n, has ap

pealed f rom the su

mmary dismissal o f his petition f or cert iorari f or revie w of disci plinary actions o f the def

endants.

The comp laint stat

es: Pursuant to Tenn. Code Ann. §§ 27-8-101 & 27-8- 102, petitioner respectfully petitions the Honorable Court for a common l aw writ o f certio rari for judicial re vi ew of

th e S ou th Ce nt ra l C or re ct io n F ac il it y (hereinafter “SCCF”) Disciplinary Board decision, and the decision of the Warden and Commissioner in affirming the appeal.1. Petitioner, Michael Kindell #209149, is an inmate inca rc er at ed at SC CF wh ic h i s m an ag ed an d o pe ra te d b y a private prison contractor by agreement with the Department of Correction and in accorda nce with statutory provision s. 2. Respondent, Jim Rose, is employed as the Assistant Commissioner of Correction, he has been designated by the Commissioner to review the Warden’s decision and

` review of the SCCF disciplinary board’s decision. 3. Respondent, Kevin Myer s, is employed as the chief Executive Office r at SCCF, one of his d

uties req uires him to review the decisions of the disciplinary board when app ealed by

inmates. 4. Respondent, Dale Kilburn, is employe d as a correctional officer supervisor, one of his duties require s him to serve as Chairperson of the Disciplinary Board,-3- which he ars and d

etermine whether an inmate

is guilty of the disciplinary

infraction. 5. Respond

ent Sharr

on Warre n, is emplo ye d as an employee

of the Department of Correction, one of her duties requires her to serve as the obse rver or monitor

at certa

in disciplinary

procee dings. 6. Respondent, Gary O verby, is employ ed as an employee of the

Department of Correction, one of his duties requires him to serve as the observer and monitor at

certain disciplina

ry procee dings. 10. Petitioner avers that on February 28th, he was summoned before the disciplinary board to answer to the cha

rges of possessio n of secu

rity threat group ma terial. 14. Petitio ner ave

rs that the

Board f ound him guilty of the disciplinary

charge. 17. Petitioner avers that he appealed the decision of the disciplinary boar

d to Respondent Myers, who concurred with their decision. 18. Petitioner avers that he appealed the decision of the disciplinary boar d to Respondent Rose who affirmed the Respondents, My ers and Kilburn decision s. 21. The actions of Respondent Kilburn in finding him guilty

of the dis ciplinar

y in fractio n violate d his right of due process when the finding s of fact and specific evidence relied upon to support those finding s were in sufficie nt evidence beca

use it does not meet the burden of proof as described in TDOC policy 502.05 PCN 95-195 Section DDD.
22 . T he ac ti on s o f R es po nd en t w ar re n o r o ve rb y (s ic ) v io la te d h is ri gh ts of du e p ro ce ss wh en th ey took no ste

ps to corr

ect the p rocedur es to prevent the Respondent Board from punishing the petitioner from conduct that was the fault of the institution in allowing him to receive letters that they felt were written in codes or otherwise subject the safety of th e i ns ti tu ti on in je op ar dy. 23. The a

ctions of Responde

nts Myers and R

ose violated his rights of due process when they affirmed the board’s decision in finding him guilty of the disciplinary char

ge on insufficient evidence which did not require the institution to carry its burden of pr oo f a s r eq ui re d b y TD C U ni fo rm Di sc ip li na ry Procedu res.-4- 24. The a ctions of the Respo ndents Kil

burn, My ers, Rose, Warr

en and Ov erby , were “ essentia lly i llegal ” and arbitrary

in the method of not providing him a proper disposition of the case in accordance with TDOC Unif

orm Disci plinary Procedu res. 25. The actions of the Respondents Kilburn, the Disciplinary Boa

rd members and My ers were “essentially illeg al” and arbitrary in hearing and determining the disposition of the charges and imposing punishment against petitioner, because employees of a

private prison contrator has no authority to take a

ny d isciplina ry action a gainst prisoner s. WHEREFORE, PREMISES CONSIDERED, Petitioner pray s that the C ourt will:
27. enter an Orde r direc ting the

Responde

nts to file all reco rd of the

procee dings inc luding bu t not limited to: TDOC Uniform Disciplinary Procedure s Index No.502.01; TDOC Definitions of Disciplinary Offenses Index No. 502.05 and PCN 95-195; the Disciplinary Hea

ring Summary, the

Disciplinary Report, th

e tape of the hear ing; and any and all documents indicate it is a true and accurate record of the pr oceedings. 28. revie w the find

ings and decision s of the SCCF Disciplinary Boa

rd, Warden and Commissioner, and invalidate their decision as being essentially illegal an d a rb it ra ry.

T.C.A.§§ 2 7-8-101 a

nd 102 pro vide: 27-8-101 . Constitutional basis . - The writ of Certiorari may be

granted whenever authorized by law, and also in all cases where an infer ior tribunal, board, o r office r exercis ing judicial func tions has excee ded th e juri sdict ion co nferre d, or i s acti ng illega lly, when, in t

he judg ment of the

court, th ere is no other p lain, spe edy , or adeq uate re medy . This section does not apply to actions governed by the Tennessee Rules of Appellate Procedure. 27-8-102 . Cases in whic h writ lies.- Certi orari lies : (1) On suggestion of diminution; (2) Where no appeal is given; (3) As a s ubstitute f

or appea l; (4) Instead of audita que

rela; or (5) Instead of wr

it of error.-5- Defend ant’s “M otion for

Summary

Judgment”

states: COME NOW the

Defend ants, Kevin Myers and D ale Kilburn (hereinafter refer red to as “Defendants”), by and through their attorney s, TOM ANDERSON and FRANKI E K. STANF

IL L, and respectfully

move this Ho no ra bl e C ou rt to gr an t t hi s M ot io n f or Su mm ar y Judgment pursuant to Rule 56.02 of the Tennessee Rules of Civ

il Proced ure. The basis for this motion i s that the d

isciplina ry action of

the Defe ndants did

not violate Tennessee Code Annotated § 41-24-110. These Defendants contemporaneously file herewith a Memorandum of Law in Support of this Motion for Summary Judgment and the Statement of Undisputed Facts.

T.C.A. § 41 , 24-110 p

rovides: Powers and duties not delegable to contractor - No contract for correctional service s shall authorize, allow or imply a deleg ation of th

e author ity o r respon sibility of the commissioner to a prison contractor for any of the fo llow ing: (1) Developing and implementing procedures for calcula ting inma

te relea se and pa

role elig ibility dates; (2) Developing and implementing procedures for calcula ting and awarding sente

nce credits; (3) Approving inmates for furlough a nd work release; (4) Approving the ty

pe of work inmates may

perform, and the wages or sentence c redits which may be

given to inmates engaging in such work; a nd (5) Gra nting, de nying or re

voking s entence

credits; placing an inmate under less restrictive custody or mo re re st ri ct iv e c us to dy; or ta ki ng an y di sc ip li na ry actions.

The motion of defendants was supported by an unsworn statement of facts and an

unsworn m

emorand um of law w

hich rea ds as follo ws: Petitioner , Michael Kindell, filed his Pe tition for Writ of Certiorari and named as Defendants, Ke vin Myers and Dale

Kilburn (

hereina fter re ferre d to as “Defendants”), who are/or we re employee s of Corrections Corporation of America (hereinaf ter referred to as “CCA”). CCA is a private cor poration under contract with the State of Tennessee to opera te and manage South Central Correctional Center (hereinafter referred to as “SCCC”).-6- PRELIMINARY STATEMENT The Petitioner, an inmate incarcerated at SCCC, alleges that on March 4, 1996, he was take n before the Disciplinary Boa

rd consisting of Defendant Kilburn, and other Disciplinary

Board members who were CCA employees, with a disciplinary charge of Possession of Security Threa

t Group Materials. After hearing the di sc ip li na ry c ha rg es ag ai ns t P et it io ne r, th e D is ci pl in ar y Board found Petitioner guilty of this disciplinary infraction. The Disciplinary Board then recommended to the Tennessee Department of Correction (hereinafter referred to as “T

DOC”) liaison, Gary

Overby, that the Petitioner receive fifteen (15) day s of punitive segregation for Possession of Security Threat Group Materia l which is a

Class A vio lation. Th e TDOC liaison approved the DisciplinaryBoard recommendation. After approval by

the TDOC Liaison, Plaintiff appealed the dec ision to TDO C Assistant Commissioner Jim Rose, who subsequently upheld the TDOC Liaison’s decision. Plaintiff brings his action in Chancer y Court for Wa

yne County , Tennes see at Waynesboro, stating tha t any action take

n by the Disciplinary Boa

rd at SCCC is an illegal action in violation of Tennessee Code Annotated § 41-24-110.

ARGUMENT Plaintiff

’s Petition

for Writ of

Certiora ri is broug

ht Pursuant t

o TCA § 27- 8-101, wh

ich state s: Constitution al basis

- The writ of certiorari may be granted whenev er autho rized by law, and

also in all cases where an inferior tribunal, boar d, or officer exercising judici al funct ions has e

xceeded t

he jurisdiction conferred, or is acting illega lly, when, in the judgment of the court, there is no other plain, speedy , or adequate remedy

... A Writ of Ce

rtiorar i under th

is statute

is not appropr iate sinc e this Hono

rable Cou

rt has no l awful au th or it y to re vi ew th e d ec is io n o f t he Di sc ip li na ry Board a t SCCC.
Th e W ri t o f C er ti or ar i i s a n e xt ra or di na ry r em ed y which is e

mbodied in

TCA § 27-8 -101 and

gener ally is to be utilized when a inferior tribunal is acting illegally , has exceeded its jurisdiction, or where there is no other plain, speedy, or a

dequate remedy

. Henry v. B oard of Claims , 638 S.W.2d 8 25 (M.D. Tenn. 1982 ); Clark v. Metropolitan Gove

rnment of

Nashville , 827 S.W.2d 312 (M.D. Tenn. 199 1). Remed y of Certiora ri is not available as of right, but is granted unde r unusual or extraordinary cir

cumstances. Id ., at 322. It is instituted-7- by an applica

tion to a court of competent jurisdiction which may or may

not authorize the writ. If there is no legitima te cause for writ of cert iorari, t o gran t the writ would be erroneous. Id . At 322. Wh en an in ma te is ch ar ge d w it h a di sc ip li na ry infraction at SCCC, the Disciplinary Boa rd conducts a hearing to determine the guilt or innocenc e of the ac cu se d i nm at e. Up on a f in di ng of gu il t, th e D is ci pl in ar y Board t hen make s its reco mmendatio n for puni shment to the Commis sioner’ s designee, who in this cas e was th e T DO C l ia is on , G ar y Ov er by. After hearing the evidence against Petitioner, the Disciplin ary

Board r ecommended to Mr. Overby that Pe ti ti on er be fo un d g ui lt y. H e a pp ro ve d t he Di sc ip li na ry Board’ s recomme

ndation in

accord ance with TDOC policy 9502.01 on

March 4, 1996. (Se e Memora ndum attache d as Exhibit “A”) Petit ioner the n appea led this decision to Defendant My ers and A ssistant Commissioner Jim Rose. The Assistant Commissioner upheld the TDOC Liaison’s, Gary Overby, a

pproval of the Disciplinary B oard’s recommendation on March 20, 1996. (Se e Discipl

inary Report Ap

peal atta ched as Exhibit “B”) Therefore, the disciplinary action taken against Petitioner was by TDOC and not SCCC. The disciplinary action and involuntary segregation sentencing was adjudicated in compliance with TCA § 41-24-110. Review of a Board’s decision under the c ommon law Writ of Certiorari is limited to a determination of whether the board exceeded its jurisdiction or acted illegally, fr

audulently or ar

bitrarily. Henry v. B oard of Claims , supra a

t 827. Common

Law Writ of Cer

tiorari cannot be used to review the Board’s judg ment as to the intrinsic correctness on the law or the facts of the case. Id . At 827. With

the discip linary

Board a t SCCC only recommending

a finding of guilt or innocence and possible punishment

to the TDO C liaison, t

heir ac tions were not in violation of TCA § 41-21-110(5). Finally, TCA § 27-8-101 state s that as an extraordinar y r emedy the Common L

aw Writ of

Certiora ri can be utilized where there is no other plain, speedy , or adequate remedy

. Henry v. Boar d of Claims , 638 S.W.2d 825 (M.D. Tenn. 1982 Clark v. Metropolitan Governm ent of Na shville , 827 S.W.2d 312 (M.D. Tenn. 1991). Under Federal L aw, Petitioner has a pl ai n, sp ee dy, an d a de qu at e r em ed y av ai la bl e i f h e t ru ly believe s his civil r

ights ha ve been violated . Dismissa

l of this action for failure to state a claim upon which relief c an be g

ranted will not prevent Petiti oner fr om pursuing other possible avenues for adequa te relief.-8- CONCLUSION The Defendants respectfully request that the Petition agains t them be d

ismissed f

or failur e to state a claim upon which relief can be gra nted.

Exhibit A to the memora

ndum is an u

ncertif ied docum

ent rea ding as f ollows: State of Tennessee Department of Correction South Central Correctional Center

P.O. Box 279 Clifton, Tennessee 38425-0279



## FILED May 31, 1996 Time: 10:3 0 a.m. Linda Blackwe

ll (signature) Clerk & Master Wayne County

Tenn MEMORANDUM
TO: Kevin Myers

Warden SCCC FROM: Gary Ove

rbey Commissioner’s Designee TDOC L iaison, SCCC SUBJECT: Inmate Disciplinary Committee Recommendation
DATE: 3-4-96

I ha ve re vi ew ed th e r ec om me nd at io n o f t he di sc ip li na ry committee

on docke

t number( s) 23378, inmate Mic hael Randall, TDOC # 209149.
X I approve of the disciplinary committee recommendation.

___ I am modify

ing the committee’s recommendation as follow s: 15 day s punitive

segre gation - Possession Security Threat G roup. Cla ss A

Additiona

l comments : EXHIBI

T A-9- Exhibit B to the memorandum is an uncertified, unsigned “appeal to commissioner.”

Bound in the record following the fore going is a three-pag e, unsworn “Statement of Undispute d Facts”

signed b y c ounsel fo

r defendants.

The orde r of dismis sal state s: It a pp ea re d t o t he Co ur t t ha t t he mo ti on fo r s um ma ry judgment was considered by the Court on June 17, 1996.
It a pp ea re d t o t he Co ur t t ha t t he mo ti on fo r s um ma ry judgment should be granted. The Court finds that T.C.A. 27-8-101 states that as an extraordinary remedy the Common Law Writ of Certiorari can be utilized where there is no other plain, speedy , or adequate remedy . The Pe ti ti on er ha s a pl ai n, sp ee dy a nd ad eq ua te re me dy available if he truly

believes his civil rights have been violated. Dismissal of this action for failure to state a claim upo n which r

elief ca n be gr anted will not prev ent Petitioner from pursuing other possible avenues for adequate relief. It is therefore orde

red by the Court that the motion for summary judgment filed by the Respondents be granted, and this Petition for Writ of Certiorari be dismissed.

Nothing is found in

the rec ord or br

iefs to sup

port the f inding of the Tria l Court tha

t, “Petitioner has a plain, speedy and adequate remedy .”

On appea l, defendant’s sta

te the issu e for re

view as f ollows:
1. Did the Trial Court err in granting def endants’, Kevin Myers a

nd Dale Kilburn, Motion for Summary Judgment for failure to state a claim upon which relief can be granted.

Defendants argue for dismissal bec ause petitioner’s petition challenges the inherent correctness of the decision of the Disciplinary Board. However, the petition also alleg es defects in procedure which should be examined.-10- Defendants next argue that: “The Action of the D isciplinary Boa rd was Leg al and Acocrding to TDOC Policy .” The argument contains numerous factual allegations
unsuppor ted by citationsto the re cord as r equired by R ule 6 of th

e Rules of

this Court. It is presumed that this argument and its supporting facts ar e derived from the “Memorandum of Law” quoted here

tofore.

The motion

before the Tria l Court and

this Court isa motion to d ismiss for failure to state a claim for which relief can be g ranted. Although a part of the complaint (inhere nt error of resul t) is subje ct to an a

dverse r uling, ot her par ts of the c omplaint (

procedu re) stat e a claim which could have m

erit. Ac cordingly, the petiti on is not sub ject to dis missal for

failure to state a claim for which relief can be g ranted.

Defendants apparently

rely upon fa

cts not stated in the petition but contained in the “memorandum of Law,”exhibits thereto and/or “Statement of Undisputed Facts,” none of which qualifie s as compe

tent evid ence to s upport a m

otion for summary judgmen t. TRCP Rule 56.05.

Under the circu

mstance s, the dismi ssal of the petition w as not justi fied and it is theref ore rev ersed. C osts of thisappeal a re asse ssed ag ainst the d

efenda nts. The c ause is remanded to the Tr

ial Court f

or further proc eeding s.



### REVERSED AN

D REMANDED

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR:

_____________________________________ SAMUEL L . LEWIS, JUDGE

_____________________________________ BEN H. CANTRELL , JUDGE