# FILED
March 29, 1999 Cecil Crowson, Jr. Appellate Court Cle rk 

### IN THE COURT OF APPEA LS OF TENNESSEE

AT NASHVILLE

GREGORY PIGG, ) ) Petitioner/Appellant, ) ) Appeal No. ) 01-A-01-9807-CH-00384 VS. ) ) Davidson Chancery ) No. 97-2698-III SCO. DANNY R. CASTEEL, et al., ) ) Defendants/Appellees. )
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE ELLEN HOBB S LYLE, CHANCELLOR

GREGORY PIGG, #228456 South Central Correction al Facility P. O. Box 279 Clifton, Tennessee 38425-0279 Pro Se/Petitioner/Appellant JOHN KNOX WALKUP Attorney General & Reporter PAMELA S. LORCH Assistant Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243-0488 Attorney for Defendants/Appell ees

REVERSED AND REMAND ED

BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: KOCH, J. CAIN, J.- 2 - 

## O P I N I O N

A prisoner

in a correctionalinstitution operated by a pr ivate corporation filed a petition for writ of certiorari. The petition challenged a di sciplinary convicti on imposed upon him by a panel of corr ectional officers who w er e employees of the corporation. The trial court dismissed the peti tion for failure to state a cause of action. We reverse, and remand to the trial court for further proceedings.
I. Disciplinary Proceedings

Since this case was dismis sed fo r fa ilure to state a claim,we take the facts from the petit ion and the amended petition. Gregor y Pigg is an inmate in the South Central Correctional Facility, a prison oper ated for the Tennessee Departm ent of Correction (TDOC) by Corrections Co rporation of America ( CCA). Mr. Pigg apparently operates an embroidery machine in the prison workshop. On Apr il 1, 1997, Senior Correctional Officer

Danny Casteel searched Mr. Pigg’s cell, and found seven pieces of upholstery material. Officer C asteel confiscated the material and issued a disciplinary report c

harging Mr. Pigg with l arceny.

On or aboutApril 6, Mr. Pigg was advised that thecharge of larceny had been dismissed, and the fabric was returned to him. On April 17, Officer Ca steel again searched Mr. Pigg’s cell, and f ound and confiscated the same sev en pieces of fabric. On April 29, the prisoner was issued a di sciplinary report for possession of contraband.

On May 6, 1997, a disciplinary pa nel composed of three C C A employees conducted a hearing on the charge. The panel found M r. Pigg to be guilty of possessing contraband, and sente nced him to five days punit ive segregati on,- 3 -

suspended for sixty days. In additio n, the panel imposed a two month package restriction on him and gave him a class C disciplin ary infraction. Accordi ng to Tenn. Code Ann. § 41-24-110(5), a private contractor operating a state prison do es not have the power to place an inmate under more restrictive custody or otherwise disc ipline the inmate.

Mr. Pigg appealed the decision of th e disciplinary panel to Jim Rose, the Assistant

Commissioner of the Department of Correction. On May

20, 1997, Mr. Rose affirmed the convic tio n because “[t]he reporting officer’s statement and evidence support the finding of guilty.” Mr. Pigg then appealed to Com missioner of Corrections Donal Campbell. He found “no due process violation s,” and affirmed the decis ion on June 9, 1997.

On August 13, 1997, Mr. Pigg fil ed a petition for writ of certiorari in the Chancery Court of Davidson County. He named as responde nts Officer Casteel, the thre e m embers of the disciplina ry panel, two other CCA e mployees, Commissio ner Rose and Commissioner Campbell. The petitioner claimed that the disciplinary proceedingsagainst him were illegal, because the state is prohibited by st atute from delegating prison disciplinary proceduresto private contractors. Tenn. Code Ann. § 41-24-110(5). In an amended petition, Mr. Pigg all eged that by returning the material to him af ter the first hearing, and then using it as the basis for the cha rge o f possessing contraband amounted to entrapment, malicious prosecution, double jeopardy, and violation of his due process rights.

The Department filed a moti on to dismiss the petition for failure to state a claim upon which reli ef can be granted. Tenn. R. Ci v. P. 12.02(6).

On March 3, 1998, the trial court issued its memorandum and order. The court first granted Mr. Pigg’s motion to amend his petit ion, but d ismissed the- 4 -

cause of action as to the individual defendants, because the proper party under a writ of certiorari is the

Tennessee Department of Correcti on. Tenn. Code Ann. § 27-9-101 et seq. The co urt then r ejected Mr. Pigg’s clai m that the state had violated T enn. Code Ann. § 41-24-110(5) byallowing CCA to impose discipline upon him. The court noted that two sta te officials had approved the action, and concluded that under Mandela v. Campbell, 978 S.W.2d 931 (Tenn. 1998) this was s ufficient to negate any possible violation of Tenn.Code Ann. § 41-24-110(5). T his appeal followed.

II.

A writ of certiorari

is an order issued by a s uper i or court to compel an inferior tribunal to send up

its record for revi ew. The scope of review u nder a petition for a common-law writ of certiorari is very narrow. The writ will issue only if the record indic ates that the inferior tribunal exceeded its jurisdict ion, or that it acted ill eg ally , fraudulently, or arbitrarily. Yokley v. State , 632 S.W.2d 123(Tenn. App. 1981). The facts alleged by the petitioner i n this case point to at least one possible irregularity in the conduct of the dis ciplinar y board that was not denied by the respondent, and which may, if proven, constitute a sufficient ground for reversal on the basis of excess of jurisdiction or illegality.

We begin our d isc ussion with the Private P rison Contracting Act of 1986, Tenn. Code Ann. § 41-24-101 et seq., and specifically with Tenn. Code Ann. § 41-24- 110, which reads as follow s: Powers and duties not delegable to contractor. --- No contract for correcti onal services shall authori ze, allow or implya delegati on of th e authority or responsibi lity of the commissioner

to a prison contractor for any of the following: (1) Developing and implementi ng proced ure s for calculating inmate release and parole eligibility dates; (2) Developing and implementi ng proceduresfo r calculating and awarding sentence credits; (3) Approving inmates for furlough and work release;- 5 - (4) Approving the

type of work inmates

may perform, and the wages or sentence credits which may be given to inmates engaging in such wor k; and ( 5) Granting, denying or revoking sentence credit s ; placin g an inmate under less restrictive custody or mo r e restrictive custody; or taking any disciplinary actions.

The Department of Correction has established Uniform Disciplinary Proceduresto govern discipline in state prisons, which it publishes in a manual for its employees. The purpose of these procedur es is “[t]o provide for

fair an d im partial d etermination and resolution of all dis ciplinary charges plac ed against inm ate s committed to the Tennessee Department of Correction.” Policy #9502.01(II).

To achieve this purpose, the warden of each prison is e mpow ered to establish a disciplinary boa rd, composed of at least si x institutional employees who receive training in disciplinary procedures. Disciplinary charges against an inmate are heard by a panel of at least three m embers of the board. The Commissio ner also appoints an employee of the Department of Correction (refer

red to i n the Uniform Disciplinary Procedures as a “Comm issioner’s Design ee”) to act as the approving authority for disciplinary actions occurring at privately operated TDOC facilities.

The role of the designee in disc iplinary pr

ocee dings includes the obligation to: “observe all Class A and B disciplinary hearings, and approve

or modify all recommendations of the disciplinary board at the time of the hearing. In cases of Class C infractions where pu niti ve segregation is recommended, the commissioner’s designee must approve/modify the recommendation as soon as possible and prior to the i nmate’ s pl acement in segregation.” Policy #9502.01(IV)(I), as quoted in Mandela v. Campbell , 978 S. W. 2d 531, 532 (Tenn. 1998).- 6 - In Mandela v. Campbell , supra, t he Supreme Court had to decide whether the Department’s disci plinary policies coul d be reconciled withthe prohibition against delegating disciplinary functions to a private contr actor. The Court found that although employees of the contra ctor r eviewed the evidence, entered their findings and made recommendations, “[t]he final approval of the disciplinary recommendation rested solely with the TDOC commissioner’s desi gnee.” The Court further o bserved that under the procedures, “[t]he board’s recom men dation as to punishment was merely a recommendation, and actual discipline was not im posed until the TDOC representative reviewed the case and approved the board’s recommendation.” Thus, the Court concluded that the poli cy in question did not viol ate Tenn. Code Ann. §41- 24-110(5). It is implicit i n the Court’s opinion that th e function of the commissioner’s designee is not to serve mer ely as a rubber stamp for the actions of

the disciplinary board, but to take an active and decisive role in the disciplinary process.

In t he case before us, it appears that the procedure mandated by th e Department

and approved by the Supreme Cour t was not followed. Since a hearing
summ ary by t he disciplinary board (a document which is mandated by the Uniform Discipl inary Procedures) is not found in the record, we cannot know for certain whether the commissioner’s d esignee participatedin the decision at issue. However, in light of the fact that the appel lee reliessolely upon the denial of Mr. Pigg’s appeal by the commissioner and the assistant commissioner to avoid the prohibitio n of th e statute, it is a fair

implication that the desi gnee did not review or give approval to the disciplineimposed by CCA’s empl oyees. The fu nc tion of the writ of certi orari is to bring up the record so that the cour t may determine whether the inferior tribunal acted illegally or arbitrarily.

We note that there is a section in the discipli nary procedures for a twostage appeal, which is separate from the section on the duti es of the commissioner’s designee. Mr. Pigg apparently fol lowed the appeals procedure. However, we reject- 7 -

the appellee’s implied argu ment that the department can shortcut its own disciplinary procedures and rely instead upon an inma te-initiated appeal to avoid the prohibition of Tenn. Code Ann. §41-24-110(5). Such a result would unfairly prejudice prisoners who, for whatever reason, chose not to initiate an appeal , and it would be inconsistent with the Supreme Court’s holding in Mandela v. Campbell, supra.

III.

In light of our decision on the fi rst iss ue, we pretermit the questi on of whether the Department acted arbitr arily when it returned the materials to Mr. P i gg and t hen charged him with the poss ession of contraband. We acc ordingly find that the petition and the amended petition do state a cause of action for the issua nce of the writ of certiorari. The order of the trial court is reversed and we remand this cause to the Chancery Court of Dav idson County for the issuance of the writ and for further proceedingsconsistent with this opi nion. Tax the c osts on appeal to the Commissioner in his official capacity.

____________________ ______ __ _ BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR:

_____________________________ WILLIAM C. KOCH, JR.,JUDGE

_____________________________ WILLIAM B. CAIN, JUDG E