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IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 1, 2017

ERIC BERNARD HOWARD v. TURNEY CENTER DISCIPLINARY 

BOARD ET AL.

Appeal from the Chancery Court for Hickman County

No. 16-CV-5773 Joseph A. Woodruff, Judge

No. M2017-00230-COA-R3-CV

Eric Bernard Howard, an inmate at the Turney Center Industrial Complex, was charged 

with the disciplinary offense of defiance. The conduct at issue occurred at the 

institution’s medical clinic. Howard became angry, used profanity, and physically struck 

clinic property. After a hearing, he was found guilty by “alternate disciplinary officer”

Rachel McCauley. Howard filed a petition for common law writ of certiorari with the 

trial court, alleging that he was denied due process at his hearing. He further asserted that 

the governing Uniform Disciplinary Procedures of the Tennessee Department of 

Correction (TDOC) were not followed. He says this resulted in substantial prejudice to 

him. The trial court found no due process violation, and ruled that any deviation from the 

Uniform Disciplinary Procedures was minimal and did not result in substantial prejudice. 

The trial court dismissed the petition. We affirm the judgment of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which W. NEAL 

MCBRAYER and ARNOLD B. GOLDIN, JJ., joined. 

Eric Bernard Howard, Only, Tennessee, appellant, pro se.

Herbert H. Slatery, III Attorney General and Reporter, Andrée S. Blumstein, Solicitor 

General, and Charlotte Davis, Assistant Attorney General, Nashville, Tennessee, for the 

appellees, Turney Center Disciplinary Board, Rachel McCauley, Kevin Genovese, and 

Derrick Schofield.

01/30/2018
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OPINION

I.

TDOC’s disciplinary report alleges that “on the evening of March 24, 2016 inmate 

Eric Howard . . . became disruptive with medical staff to the point where he was using 

profanity and he was banging on stationary property inside the clinic.” He was charged 

with defiance. Howard was given a copy of the disciplinary report on March 31, 2016. 

A hearing before the alternative hearing officer, respondent Cpl. Rachel McCauley, took 

place on April 1, 2016. Two persons testified: Howard, and Internal Affairs officer Sgt. 

Dustin Mackin, who presented evidence deemed confidential by TDOC – evidence that 

TDOC says supported the charge and conviction. Cpl. McCauley found him guilty of 

defiance. The discipline imposed on Howard was five days in punitive segregation, a 

nine-month package restriction, and a four dollar fine. 

He appealed to the warden, and then to the TDOC commissioner, both of whom 

upheld his conviction. Having exhausted his administrative remedies, Howard filed a 

petition for common law writ of certiorari in the trial court. He alleged that (1) Cpl. 

McCauley was not authorized to hear his case under the Uniform Disciplinary 

Procedures; (2) his hearing was held 21.5 hours after he was notified of the charge, 

contrary to the Procedures’ requirement of a minimum 24 hours; and (3) the confidential 

information was not properly presented under the Procedures. The State did not oppose 

the petition, and the trial court granted it. Respondents moved for judgment on the 

record. The trial court found that the hearing officer was authorized to hear the case, the 

21.5 hour notice was a minor deviation from the Uniform Disciplinary Procedures that 

did not substantially prejudice Howard, and that the confidential evidence was properly 

presented at the hearing. The court granted the motion and dismissed the petition. 

Howard timely filed a notice of appeal. 

II.

The issue presented on appeal is whether the alleged procedural defects at 

Howard’s hearing constitute deviations from the Uniform Disciplinary Procedures that 

resulted in a violation of his constitutional due process rights or substantial prejudice to 

him. 

III.

As this Court has recently observed:
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The common-law writ of certiorari is the procedural vehicle 

prisoners may use to obtain a review of decisions by prison 

disciplinary boards, parole eligibility review boards, and other 

similar administrative tribunals. Willis v. Tenn. Dep’t of 

Corr., 113 S.W.3d 706, 712 (Tenn. 2003); see Tenn. Code 

Ann. § 27–8–101 (providing that the writ may be granted 

where an inferior tribunal, board, or officer exercising judicial 

functions exceeds jurisdiction or acts illegally and no other 

plain, speedy, or adequate remedy is available); Davison v. 

Carr, 659 S.W.2d 361, 363 (Tenn. 1983) (“Common law 

certiorari is available where the court reviews an 

administrative decision in which that agency is acting in a 

judicial or quasi-judicial capacity.”). . . .

A reviewing court is not permitted to “(1) inquire into the 

intrinsic correctness of the lower tribunal’s decision, (2) 

reweigh the evidence, or (3) substitute [its] judgment for that 

of the lower tribunal” when considering a petition for a 

common law writ of certiorari. Keen, 2008 WL 539059 at *2 

(citations omitted); see also Heyne v. Metro. Nashville Bd. of 

Pub. Educ., 380 S.W.3d 715, 729 (Tenn. 2012); Willis, 113 

S.W.3d at 712. Rather, the scope of review is limited to 

determining “whether the disciplinary board exceeded its 

jurisdiction or acted illegally, fraudulently, or arbitrarily.”

Willis, 113 S.W.3d at 712 (citing Turner v. Tenn. Bd. of 

Paroles, 993 S.W.2d 78, 80 (Tenn. Ct. App. 1999)); South v. 

Tenn. Bd. of Paroles, 946 S.W.2d 310, 311 (Tenn. Ct. App. 

1996)). This involves a question of law, not of fact. Harding 

Acad. v. Metro. Gov't of Nashville & Davidson Cnty., No. 

M2004–02118–COA–R3–CV, 2006 WL 627193, at *4 

(Tenn. Ct. App. Sept. 25, 2006). “ ‘The scope of review by 

the appellate courts is no broader or more comprehensive than 

that of the trial court with respect to evidence presented 

before the Board.’ ” Id. (quoting Watts v. Civ. Serv. Bd. for 

Columbia, 606 S.W.2d 274, 277 (Tenn. 1980)).

A common law writ of certiorari can be used to correct “(1) 

fundamentally illegal rulings; (2) proceedings inconsistent 

with essential legal requirements; (3) proceedings that 

effectively deny a party his or her day in court; (4) decisions 

beyond the lower tribunal’s authority; and (5) plain and 
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palpable abuses of discretion.” Willis, 113 S.W.3d at 712 . . .

In other words, a trial court’s review is focused on the manner 

in which the lower tribunal’s decision was reached rather than 

its intrinsic correctness. Garrard v. Tenn. Dep’t of Corr., 

No. M2013–01525–COA–R3–CV, 2014 WL 1887298, at *4 

(Tenn. Ct. App. May 8, 2014) (citing Powell v. Parole 

Eligibility Rev. Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App. 

1994)); Keen, 2008 WL 539059, at *2 (citing Hall v. 

McLesky, 83 S.W.3d 752, 757 (Tenn. Ct. App. 2001)). If the 

tribunal reaches its decision in a manner that is either 

unlawful or unconstitutional, the decision is subject to judicial 

review. Powell, 879 S.W.2d at 873.

Snow v. Turney Ctr. Disciplinary Bd., No. M2016-01148-COA-R3-CV, 2016 WL 

7409846, at *4-5 (Tenn. Ct. App., filed Dec. 22, 2016). 

IV.

We first address Howard’s due process argument. In Willis, the Tennessee 

Supreme Court made the following pertinent statements regarding the due process 

interests of an inmate facing disciplinary proceedings:

The United States Supreme Court has addressed, on several 

occasions, the issue of when a prisoner is deemed to have 

been deprived of a liberty interest. In Sandin [v. Conner], 

the Court held that a liberty interest is not created unless the 

disciplinary restraints being imposed on a prisoner are 

atypical in comparison to the “ordinary incidents of prison 

life.” Sandin, 515 U.S. at 483–84, 115 S.Ct. 2293 [1995]. In 

that case, the Court held that thirty days of punitive 

segregation was not a dramatic departure from the basic 

conditions of the prisoner’s indeterminate sentence, and 

therefore, the prisoner was not entitled to due process 

protection. Sandin, 515 U.S. at 486, 115 S.Ct. 2293.

Thus, pursuant to Sandin, we find that Tharpe was not 

deprived of a liberty interest when he was punished with 

punitive and administrative segregation.

Willis, 113 S.W.3d at 711. The Willis Court further held that “State prisoners in 

Tennessee have a property interest in the funds in their prison trust fund accounts,” id., 
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but found that “the de minimus nature” of the five-dollar fine imposed in that case 

“makes it immune from procedural due process requirements.” Id. at 712. 

On numerous occasions, this Court has followed the principles set forth in Willis 

and Sandin to hold that disciplinary restraints such as those imposed on Howard in this 

case do not implicate a liberty interest because they are not “atypical in comparison to the 

‘ordinary incidents of prison life.’ ” Willis, 113 S.W.3d at 711; see, e.g., Walton v. Tenn. 

Dep’t of Corr., No. W2015-01336-COA-R3-CV, 2016 WL 3078838, at *7 (Tenn. Ct. 

App., filed May 23, 2016); Bonner v. Cagle, No. W2015-01609-COA-R3-CV, 2016 WL 

97648, at *6 (Tenn. Ct. App., filed Jan. 7, 2016); Himes v. Tenn. Dep’t of Corr., No. 

M2011-02546-COA-R3-CV, 2012 WL 7170480, at *4 (Tenn. Ct. App., filed Dec. 6, 

2012). In Bonner, we held that the imposition of ten days punitive segregation, three 

months visitation cancellation, a nine-month package restriction, and a four-dollar fine 

were “not sufficient punishments to constitute ‘a dramatic departure from the basic 

conditions’ of . . . Bonner’s sentence.” 2016 WL 97648, at *6. The punishment in 

Bonner is very similar, albeit slightly harsher, than the discipline imposed on Howard in 

the present case. Under the above-cited authorities, we hold that the disciplinary 

restraints imposed here do not implicate a liberty interest protected by due process. 

V.

Independent of his due process claims, Howard asserts that TDOC failed to follow 

its Uniform Disciplinary Procedures. Willis, 113 S.W.3d at 713; Patterson v. Tenn. 

Dep’t of Corr., No. W2009-01733-COA-R3-CV, 2010 WL 1565535, at *2 (Tenn. Ct. 

App., filed Apr. 10, 2010) (“[E]ven if a state prisoner is not entitled to due process 

protections in a disciplinary proceeding, the inmate may nevertheless assert a claim under 

a common-law writ of certiorari that the prison disciplinary board otherwise acted 

illegally or arbitrarily in failing to follow TDOC’s Uniform Disciplinary Procedures.”). 

As this Court stated in Bonner,

The Uniform Disciplinary Procedures exist “[t]o provide for 

the fair and impartial determination and resolution of all 

disciplinary charges placed against inmates.” TDOC Policy 

No. 502.01(II); Meeks v. Tenn. Dep’t of Corr., No. M2007–

01116–COA–R3–CV, 2008 WL 2078054 at *3 (Tenn. Ct.

App. May 15, 2008). Minor deviations from the procedures 

will not warrant dismissal of the disciplinary action unless the 

prisoner demonstrates “substantial prejudice as a result and 

the error would have affected the disposition of the case.” 

TDOC Policy No. 502.01(V); Meeks, at *3. “To trigger 
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judicial relief, a departure from the Uniform Disciplinary 

Procedures must effectively deny the prisoner a fair hearing.” 

Jeffries v. Tenn. Dep’t of Corr., 108 S.W.3d 862, 873 (Tenn. 

Ct. App. 2002). Thus, an inmate may be entitled to relief 

under a common law writ of certiorari if he demonstrates that 

the disciplinary board failed to adhere to the Uniform 

Disciplinary Procedures and that its failure to do so resulted 

in substantial prejudice to the inmate. Irwin v. Tenn. Dep’t 

of Corr., 244 S.W.3d 832, 835 (Tenn. Ct. App. 2007).

2016 WL 97648, at *7.

A.

Howard’s first claim is that the disciplinary hearing officer who presided over his 

case was not authorized by the Uniform Procedures. We disagree. The procedures 

provide as follows regarding who may hear and decide disciplinary proceedings:

A. The Disciplinary Board 1. Each Warden shall appoint a 

minimum of six institutional employees who shall serve as 

members of the disciplinary board to hear all Class A 

disciplinary offenses and Class B offenses for which 

accumulated sentence credits may be taken, i.e., where good 

conduct credits are applied to an inmate’s sentence.

* * *

B. Disciplinary Hearing Officer (Class B and C) 1. The 

disciplinary hearing officer shall be designated to hear Class 

C disciplinary offenses and those Class B Disciplinary 

offenses for which no accumulated sentence credits may be 

taken.

TDOC Policy No. 502.01(VI) (underlining in original). A “disciplinary hearing officer” 

is defined as “[a]n employee appointed by the Warden to serve as the chairperson of the 

disciplinary board and to hear Class B and C disciplinary offenses.” Id. No. 

502.01(IV)(D). The procedures further state that “[a]t least one alternate DHO shall be 

appointed by the Warden.” Id. 

Howard’s charge of defiance is a Class B offense. His punishment did not include 

a loss of good conduct credits, so a disciplinary hearing officer was the proper person to 
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preside at the hearing. The State asserts that Cpl. McCauley was duly appointed by the 

warden as an alternate disciplinary hearing officer. Howard disputes this, arguing that he 

was not presented with any proof establishing her appointment. We find nothing in the 

Uniform Disciplinary Procedures that provides a right to an inmate to make such a 

demand of TDOC, nor that requires TDOC to provide such information. The trial court 

specifically found that “Corporal McCauley was appointed as an alternate disciplinary 

hearing officer.” The evidence does not preponderate against this conclusion. 

B.

Secondly, Howard asserts that he was not notified of the charge against him a full 

24 hours before his hearing. The procedures provide that “[a] disciplinary hearing shall 

not be held in less than 24 hours after the inmate has been charged with a disciplinary 

[offense] unless the inmate has requested a prompt disposition and waives his/her right to 

the 24-hour notice in writing.” TDOC Policy No. 502.01(VI)(A)(6)(c). The State agrees 

that only 21.5 hours elapsed between the notice and the hearing, but argues that this is a 

minor deviation that did not result in substantial prejudice to Howard, nor did it deny him 

a fair hearing under the circumstances. 

In Willis, the Supreme Court addressed an inmate’s similar claim of inadequate 

notice and stated:

It is unclear from the petition to what extent, if any, the 

petitioners received notice of the charges against them. . . . If 

the petitioners received no notice of the charges against them, 

this would be patently prejudicial; if they did receive notice, 

but that notice was somehow defective, its prejudicial nature 

would depend on the particular shortcomings of the 

challenged notice.

113 S.W.3d at 713. In the present case, Howard has not pointed to anything in the record 

that indicates he was substantially prejudiced by the denial of two and a half more hours 

to prepare for his hearing. He did not object to insufficient notice before the hearing 

officer, nor in his appeals to the warden and commissioner. 

As we have recently observed, the Uniform Procedural Procedures accord an 

inmate the following rights at his hearing: 

(1) The right to decline to testify. It shall be the burden of the 

reporting employee to prove guilt by a preponderance of the 

evidence.
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(2) To have the evidence against him/her presented first. The 

board/hearing officer shall consider all evidence which it 

finds to be reliable, whether or not such evidence would be 

admissible in a court of law.

(3) To cross-examine any witness (except a confidential 

source) who testified against him/her and to review all 

adverse documentary evidence (except confidential 

information).

(4) To have the reporting official to the alleged infraction 

present and testifying at the hearing. . . . Even if such an

appearance is waived by the inmate, the employee may 

appear and testify at the hearing.

(5) The right to testify in his/her own behalf after all evidence 

has been presented.

(6) The right to present the testimony of relevant witness(es), 

unless allowing the witness to appear would pose a threat to 

institutional safety or order.

Hanley v. Turney Ctr. Disciplinary Bd., No. M2016-01223-COA-R3-CV, 2016 WL 

6995481, at *6 (Tenn. Ct. App., filed Nov. 30, 2016), quoting TDOC Policy No. 

502.01(VI)(L)(4)(c).

In the present case, Howard was allowed to testify on his own behalf, and he was 

present during the testimony of the reporting officer. There is no transcript of the hearing 

in the record. In order to call witnesses, an inmate is required to fill out and submit an 

Inmate Witness Request on a form CR-3511. The summary prepared by the hearing 

officer states that no CR-3511 form was submitted. Furthermore, TDOC Policy No. 

502.01(VI)(J)(1) provides an inmate with the right to request a continuance. Howard did 

not make such a request. In short, there was an erroneous deviation from the Uniform 

Disciplinary Procedures when Howard was allowed only 21.5 hours following the notice 

of the charge against him, instead of the mandated 24 hours. Under the particular 

circumstances of the present case, however, the deviation was relatively minor, and the 

error did not cause substantial prejudice to Howard, nor did it deny him a fair hearing. 

The trial court did not err in denying Howard relief on this ground. 
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C.

Finally, Howard argues that the confidential information provided to the hearing 

officer was not presented in accordance with the Uniform Disciplinary Procedures. As 

can be seen from Policy No. 502.01(VI)(L)(4)(c)(3) quoted above, that section creates an 

exception to an inmate’s rights to cross-examine a witness and to review adverse 

documentary evidence when there is confidential information involved. In this case, the 

evidence supporting the charge of defiance was deemed to be confidential. The Uniform

Disciplinary Procedures require the following procedures in such a case:

When the disciplinary hearing officer/chairperson determines 

that he/she should receive testimony from a confidential 

source whose identity cannot be disclosed due to either a fear 

of reprisal, or a breach of security information, or determines 

that he/she should receive evidence of a confidential/security 

sensitive nature, it shall be the responsibility of the

disciplinary hearing officer to independently access and 

verify the reliability of the informant’s testimony and/or the 

confidential security sensitive evidence.

Where the reliability of the confidential informant and/or the 

evidence of security sensitive nature has not been 

independently verified, such testimony or evidence shall not 

be considered by the disciplinary board/hearing officer in the 

disposition of the disciplinary charge(s).

Whenever confidential information or confidential security 

sensitive evidence is utilized by the disciplinary hearing 

officer/chairperson as a basis for its decision, the TDOC 

Contemporaneous Record of Confidential Informant 

Reliability, CR-3510, shall be completed to document the

factual basis for the disciplinary hearing 

officer’s/chairperson’s finding that the informant and/or 

security sensitive evidence was reliable. . . . This form shall 

be considered confidential and kept as a non-public access 

record in an area designated by the Warden.

TDOC Policy No. 502.01(VI)(L)(4)(e-g). 

The record before us contains the confidential information, and an affidavit of 

reporting officer Dustin Mackin, in which he explains why the information is 
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confidential, attests that the copies provided are true and accurate, and confirms that he 

provided a Form CR-3510 as required. The properly completed CR-3510 form is also in 

the record. However, on the disciplinary hearing summary report, under “witnesses 

against offender,” there are three “yes/no” boxes to be checked, indicating whether a 

written statement was submitted, a Form CR-3510 completed, and a Form CR-3510 was 

“received by disciplinary board.” The hearing officer checked “no” on those three boxes. 

This is obviously a clerical error. Notwithstanding this error, Howard argues that he was 

prejudiced by it. 

It is abundantly clear that the hearing officer, through accident or oversight, 

mistakenly checked the wrong three boxes on the form. This conclusion is supported by 

several things in the record. First, in the hearing summary report, under the heading 

“description of physical evidence introduced,” the hearing officer wrote “confidential 

information” and indicated that the internal affairs report was available. Under “findings 

of fact and specific evidence relied upon to support those findings,” the officer wrote 

“due to report and confidential information provided by IA Dustin Mackin.” Second, as 

noted, the record includes Mackin’s affidavit, which attests that he provided the required 

form. Third, the CR-3510 form itself bears the signature of the hearing officer, dated the 

day of the hearing, wherein the hearing officer affirmed that 

the reliability of the informant was verified in the following 

manner: [s]worn statement before the board by the 

investigating officer, Dustin Mackin, that he believes the 

confidential informant(s) information to be reliable because it 

has been independently corroborated on specific material 

points. 

It thus clearly appears that the protocol requirements of TDOC Policy No. 

502.01(VI)(L)(4)(e-g) regarding confidential information have been fully complied with. 

The clerical error did not prejudice Howard in any way, and does not provide him an 

avenue for relief. 

VI.

The judgment of the trial court is affirmed. Costs on appeal are assessed to the 

appellant, Eric Bernard Howard. The case is remanded for collection of costs assessed 

below. 

_______________________________

CHARLES D. SUSANO, JR., JUDGE