FILED

February 7, 1997

Cecil W. Crowson

Appellate Court Clerk

MICHAEL KINDELL, )

)

Plaintiff/Appellant, )

) Wayne County Chancery

) No. 9689

VS. )

) Appeal No.

) 01A01-9610-CH-00495

JIM H. ROSE, Assist. Commissioner )

of the Tennessee Dept. of Corrections, )

)

Defendants/Appellees. )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT FOR WAYNE COUNTY

AT WAYNESBORO, TENNESSEE

HONORABLE JIM T. HAMILTON, JUDGE

Michael Kindell #209149

CCA/SCCF

P.O.Box 279

Clifton, TN 38425

ATTORNEY FOR PLAINTIFF/APPELLANT

Abigail Turner Frankie K. Stanfill

Asst. Atty. General Law Office of Tom Anderson

404 James Robertson Parkway P.O. Box 900

Parkway Towers, Suite 2000 Lexington, TN 38351

Nashville, TN 37243-0488

ATTORNEYS FOR DEFENDANTS/APPELLEES

REVERSED AND REMANDED.

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

SAMUEL L. LEWIS, JUDGE

BEN H. CANTRELL., JUDGE
-2-

MICHAEL KINDELL, )

)

Plaintiff/Appellant, )

) Wayne County Chancery

) No. 9689

VS. )

) Appeal No.

) 01A01-9610-CH-00495

JIM H. ROSE, Assist. Commissioner )

of the Tennessee Dept. of Corrections, )

)

Defendants/Appellees. )

O P I N I O N

The captioned petitioner, an inmate of an institution operated by a private contractor

for the Tennessee Department of Correction, has appealed from the summary dismissal of his

petition for certiorari for review of disciplinary actions of the defendants.

The complaint states:

 Pursuant to Tenn. Code Ann. §§ 27-8-101 & 27-8-

102, petitioner respectfully petitions the Honorable 

Court for a common law writ of certiorari for judicial 

review of the South Central Correction Facility 

(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 incarcerated at SCCF which is managed and operated by 

a private prison contractor by agreement with the

Department of Correction and in accordance with 

statutory provisions.

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 Myers, is employed as the chief

Executive Officer at SCCF, one of his duties requires 

him to review the decisions of the disciplinary board

when appealed by inmates.

4. Respondent, Dale Kilburn, is employed as a correctional officer supervisor, one of his duties requires

him to serve as Chairperson of the Disciplinary Board,
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which hears and determine whether an inmate is 

guilty of the disciplinary infraction.

5. Respondent Sharron Warren, is employed as 

an employee of the Department of Correction, one 

of her duties requires her to serve as the observer

or monitor at certain disciplinary proceedings.

6. Respondent, Gary Overby, is employed as an 

employee of the Department of Correction, one of 

his duties requires him to serve as the observer and

monitor at certain disciplinary proceedings.

10. Petitioner avers that on February 28th, he was

summoned before the disciplinary board to answer

to the charges of possession of security threat 

group material.

14. Petitioner avers that the Board found him 

guilty of the disciplinary charge.

17. Petitioner avers that he appealed the decision 

of the disciplinary board to Respondent Myers, who

concurred with their decision.

18. Petitioner avers that he appealed the decision

of the disciplinary board to Respondent Rose who 

affirmed the Respondents, Myers and Kilburn

decisions.

21. The actions of Respondent Kilburn in finding

him guilty of the disciplinary infraction violated his 

right of due process when the findings of fact and 

specific evidence relied upon to support those 

findings were insufficient evidence because it 

does not meet the burden of proof as described in 

TDOC policy 502.05 PCN 95-195 Section DDD.

22. The actions of Respondent warren or overby 

(sic) violated his rights of due process when they 

took no steps to correct the procedures 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 

the institution in jeopardy.

23. The actions of Respondents Myers and Rose

violated his rights of due process when they affirmed

the board’s decision in finding him guilty of the

disciplinary charge on insufficient evidence which 

did not require the institution to carry its burden of

proof as required by TDC Uniform Disciplinary 

Procedures.
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24. The actions of the Respondents Kilburn, Myers,

Rose, Warren and Overby, were “essentially illegal”

and arbitrary in the method of not providing him a 

proper disposition of the case in accordance with 

TDOC Uniform Disciplinary Procedures.

25. The actions of the Respondents Kilburn, the

Disciplinary Board members and Myers were 

“essentially illegal” 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 any disciplinary action against 

prisoners.

 WHEREFORE, PREMISES CONSIDERED, 

Petitioner prays that the Court will:

27. enter an Order directing the Respondents to file

all record of the proceedings including but not 

limited to: TDOC Uniform Disciplinary Procedures

Index No.502.01; TDOC Definitions of Disciplinary

Offenses Index No. 502.05 and PCN 95-195; the

Disciplinary Hearing Summary, the Disciplinary

Report, the tape of the hearing; and any and all 

documents indicate it is a true and accurate record

of the proceedings.

28. review the findings and decisions of the SCCF

Disciplinary Board, Warden and Commissioner, and 

invalidate their decision as being essentially illegal

and arbitrary.

T.C.A.§§ 27-8-101 and 102 provide: 

 27-8-101. Constitutional basis. - The writ of 

Certiorari may be granted whenever authorized by

law, and also in all cases where an inferior tribunal, 

board, or officer exercising judicial functions has 

exceeded the jurisdiction conferred, or is acting 

illegally, when, in the judgment of the court, there is

no other plain, speedy, or adequate remedy. This

section does not apply to actions governed by the

Tennessee Rules of Appellate Procedure.

 27-8-102. Cases in which writ lies. - Certiorari 

lies:

(1) On suggestion of diminution;

(2) Where no appeal is given;

(3) As a substitute for appeal;

(4) Instead of audita querela; or

(5) Instead of writ of error.
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Defendant’s “Motion for Summary Judgment” states:

COME NOW the Defendants, Kevin Myers and Dale

Kilburn (hereinafter referred to as “Defendants”), by

and through their attorneys, TOM ANDERSON and

FRANKIE K. STANFILL, and respectfully move this

Honorable Court to grant this Motion for Summary 

Judgment pursuant to Rule 56.02 of the Tennessee 

Rules of Civil Procedure. The basis for this motion is 

that the disciplinary action of the Defendants 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 provides:

Powers and duties not delegable to contractor - No

contract for correctional services shall authorize, allow

or imply a delegation of the authority or responsibility

of the commissioner to a prison contractor for any of 

the following:

(1) Developing and implementing procedures for 

calculating inmate release and parole eligibility dates;

(2) Developing and implementing procedures for

calculating and awarding sentence credits;

(3) Approving inmates for furlough and work release;

(4) Approving the type of work inmates may perform, 

and the wages or sentence credits which may be given 

to inmates engaging in such work; and 

(5) Granting, denying or revoking sentence credits;

placing an inmate under less restrictive custody or 

more restrictive custody; or taking any disciplinary 

actions.

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

unsworn memorandum of law which reads as follows:

Petitioner, Michael Kindell, filed his Petition for Writ 

of Certiorari and named as Defendants, Kevin Myers

and Dale Kilburn (hereinafter referred to as 

“Defendants”), who are/or were employees of 

Corrections Corporation of America (hereinafter 

referred to as “CCA”). CCA is a private corporation 

under contract with the State of Tennessee to operate 

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 taken before the

Disciplinary Board consisting of Defendant Kilburn, 

and other Disciplinary Board members who were CCA 

employees, with a disciplinary charge of Possession of 

Security Threat Group Materials. After hearing the 

disciplinary charges against Petitioner, the Disciplinary 

Board found Petitioner guilty of this disciplinary

infraction. The Disciplinary Board then recommended 

to the Tennessee Department of Correction (hereinafter referred to as “TDOC”) liaison, Gary Overby, 

that the Petitioner receive fifteen (15) days of punitive 

segregation for Possession of Security Threat Group 

Material which is a Class A violation. The TDOC 

liaison approved the Disciplinary Board recommendation.

 After approval by the TDOC Liaison, Plaintiff 

appealed the decision to TDOC Assistant

Commissioner Jim Rose, who subsequently upheld the 

TDOC Liaison’s decision. Plaintiff brings his action in 

Chancery Court for Wayne County, Tennessee at 

Waynesboro, stating that any action taken by the 

Disciplinary Board at SCCC is an illegal action in 

violation of Tennessee Code Annotated § 41-24-110.

 ARGUMENT

 Plaintiff’s Petition for Writ of Certiorari is brought 

Pursuant to TCA § 27-8-101, which states:

 Constitutional basis - The writ of certiorari may be 

granted whenever authorized by law, and also in all

cases where an inferior tribunal, board, or officer 

exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the 

judgment of the court, there is no other plain, speedy, 

or adequate remedy...

A Writ of Certiorari under this statute is not 

appropriate since this Honorable Court has no lawful 

authority to review the decision of the Disciplinary 

Board at SCCC.

 The Writ of Certiorari is an extraordinary remedy 

which is embodied in TCA § 27-8-101 and generally is

to be utilized when a inferior tribunal is acting illegally, 

has exceeded its jurisdiction, or where there is no other 

plain, speedy, or adequate remedy. Henry v. Board of 

Claims, 638 S.W.2d 825 (M.D. Tenn. 1982); Clark v.

Metropolitan Government of Nashville, 827 S.W.2d 

312 (M.D. Tenn. 1991). Remedy of Certiorari is not 

available as of right, but is granted under unusual or 

extraordinary circumstances. Id., at 322. It is instituted
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by an application to a court of competent jurisdiction 

which may or may not authorize the writ. If there is no 

legitimate cause for writ of certiorari, to grant the writ 

would be erroneous. Id. At 322.

 When an inmate is charged with a disciplinary 

infraction at SCCC, the Disciplinary Board conducts a 

hearing to determine the guilt or innocence of the 

accused inmate. Upon a finding of guilt, the Disciplinary 

Board then makes its recommendation for punishment 

to the Commissioner’s designee, who in this case was 

the TDOC liaison, Gary Overby.

 After hearing the evidence against Petitioner, the 

Disciplinary Board recommended to Mr. Overby that 

Petitioner be found guilty. He approved the Disciplinary 

Board’s recommendation in accordance with TDOC 

policy 9502.01 on March 4, 1996. (See Memorandum 

attached as Exhibit “A”) Petitioner then appealed this 

decision to Defendant Myers and Assistant 

Commissioner Jim Rose. The Assistant Commissioner 

upheld the TDOC Liaison’s, Gary Overby, approval of 

the Disciplinary Board’s recommendation on March 20, 

1996. (See Disciplinary Report Appeal attached 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 common law 

Writ of Certiorari is limited to a determination of 

whether the board exceeded its jurisdiction or acted 

illegally, fraudulently or arbitrarily. Henry v. Board of 

Claims, supra at 827. Common Law Writ of Certiorari 

cannot be used to review the Board’s judgment as to 

the intrinsic correctness on the law or the facts of the

case. Id. At 827. With the disciplinary Board at SCCC 

only recommending a finding of guilt or innocence and 

possible punishment to the TDOC liaison, their actions 

were not in violation of TCA § 41-21-110(5).

 Finally, TCA § 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. Henry v. Board of Claims, 638 

S.W.2d 825 (M.D. Tenn. 1982 Clark v. Metropolitan 

Government of Nashville, 827 S.W.2d 312 (M.D. 

Tenn. 1991). Under Federal Law, Petitioner has a 

plain, speedy, and adequate remedy available if he truly 

believes his civil rights have been violated. Dismissal 

of this action for failure to state a claim upon which 

relief can be granted will not prevent Petitioner from 

pursuing other possible avenues for adequate relief.
-8-

CONCLUSION

 The Defendants respectfully request that the Petition

against them be dismissed for failure to state a claim 

upon which relief can be granted.

Exhibit A to the memorandum is an uncertified document reading as follows:

State of Tennessee

Department of Correction

South Central Correctional Center

P.O. Box 279

Clifton, Tennessee 38425-0279

 FILED

May 31, 1996

Time: 10:30 a.m.

Linda Blackwell (signature)

Clerk & Master

Wayne County Tenn

MEMORANDUM

TO: Kevin Myers

Warden

SCCC

FROM: Gary Overbey

Commissioner’s Designee

TDOC Liaison, SCCC

SUBJECT: Inmate Disciplinary Committee 

Recommendation

DATE: 3-4-96

I have reviewed the recommendation of the disciplinary 

committee on docket number(s) 23378, inmate Michael 

Randall, TDOC # 209149.

 X I approve of the disciplinary committee 

recommendation.

___ I am modifying the committee’s recommendation

as follows:

15 days punitive segregation - Possession Security

Threat Group. Class A

Additional comments:

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

Bound in the record following the foregoing is a three-page, unsworn “Statement of

Undisputed Facts” signed by counsel for defendants.

The order of dismissal states:

 It appeared to the Court that the motion for summary 

judgment was considered by the Court on June 17, 1996.

 It appeared to the Court that the motion for summary 

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

Petitioner has a plain, speedy and adequate remedy 

available if he truly believes his civil rights have been 

violated. Dismissal of this action for failure to state a 

claim upon which relief can be granted will not prevent 

Petitioner from pursuing other possible avenues for 

adequate relief.

 It is therefore ordered 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 record or briefs to support the finding of the Trial Court that,

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

On appeal, defendant’s state the issue for review as follows:

1. Did the Trial Court err in granting defendants’, 

Kevin Myers and Dale Kilburn, Motion for Summary

Judgment for failure to state a claim upon which relief

can be granted.

Defendants argue for dismissal because petitioner’s petition challenges the inherent

correctness of the decision of the Disciplinary Board. However, the petition also alleges

defects in procedure which should be examined.
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Defendants next argue that: “The Action of the Disciplinary Board was Legal and

Acocrding to TDOC Policy.” The argument contains numerous factual allegations

unsupported by citations to the record as required by Rule 6 of the Rules of this Court. It is

presumed that this argument and its supporting facts are derived from the “Memorandum of

Law” quoted heretofore.

The motion before the Trial Court and this Court is a motion to dismiss for failure to

state a claim for which relief can be granted. Although a part of the complaint (inherent error

of result) is subject to an adverse ruling, other parts of the complaint (procedure) state a claim

which could have merit. Accordingly, the petition is not subject to dismissal for failure to

state a claim for which relief can be granted.

Defendants apparently rely upon facts not stated in the petition but contained

in the “memorandum of Law,” exhibits thereto and/or “Statement of Undisputed Facts,” none

of which qualifies as competent evidence to support a motion for summary judgment. TRCP

Rule 56.05.

Under the circumstances, the dismissal of the petition was not justified and it is

therefore reversed. Costs of this appeal are assessed against the defendants. The cause is

remanded to the Trial Court for further proceedings.

REVERSED AND REMANDED 

_______________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

_____________________________________

SAMUEL L. LEWIS, JUDGE

_____________________________________

BEN H. CANTRELL, JUDGE