1 A corrections officer h ad discovered the plastic bag earlier in t he day and, upon opening it, had found five plastic bottles fill

ed with liquid that smell ed like alcohol.

The offic

er’s s uperior had instruct

ed him to replace t

he bottles with rocks,

to return t

he bag to the si

de of the road, and t

o keep the bag under sur veillance. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Assigned on Briefs A

ugust 2, 2001
CEDRIC FRANKLIN v. TENNE SSEE DEPARTMENT OF CORR ECTION
Appeal from the Chancery Court for Davidson County No. 00-2094-I Irvin H. Kilcrease, Jr., Chancellor

No. M2001-00279-COA-R3-CV - Filed November 8, 2001

W ILLI AM C. K OCH , J R ., J., con curring.

This appeal focuses on

the type of notice that prisoners charged with disciplinary infractions must receive. Wh ile I agr ee with the results of the majo rity’s opinio

n, I write sep

arately to emphasize

tha t prisoners are constitutionally entitled to advance written notice of the claimed disciplinary

infraction notwithstanding the po te ntial punishment they are facing. In this case , the prisoner received minimally adequate notice.

I.

In August 1993, Cedric Franklin was indicted for one count of first degree murder, one count of first degree

felony murder, and one count of a especially aggravated robbery. I

n January 1994, he pled guilty to one count of second degree murder and onecount of especially aggravated r obbery andreceived concurrent

sentences of 35 and 20 years. During the events re levant to this case, Mr. Fran kli n wa s in carc erat ed at the Wes t Te nne sse e St ate Pen ite nti ary.
Mr. Franklin and another prisoner, Robert Brown, were operating a tractor outside the prison
on April20, 2000. At some point, they stopped the tractor, and Mr. Brown instructe d Mr. Franklin to pick up a black plastic bag containing rocks that was laying on the side of the public road. There is some evidence that the prisoners believed that the bag contain

ed bottles of alco

holic beverag

es. 1 Messrs. Franklin

and Brown continued on their way to the prison’s recycling center where they were met by another

prisoner, Gary

Reeves. At this point, several corrections officers accosted the three prisoners. When the officers asked for the plastic bag, Mr. Franklin stated that he did not know where it was. One of the officers eventually found the ba g in another part of the recycling ce nter.2 In 1994, the Departm ent of Corr ection’s policy defi ning discipl

inary off enses inclu

ded a separat

e offens e for “Violati on of State Law (VSL)” and defi ned this offense as “[a] ny violation of T .C.A. not sp ecifically addr essed in this poli cy. ” Tenn . Dep’ t of

Corr ., P oli cy I

ndex No. 50 2.05 IV.VVV.

-2- Mr. Franklin and the other two prisoner s were charged with “violation of state law” 2 and
were placed in ad ministrat ive segregati on pending a discipli nary hearing. The written disciplinary report provided to Mr. Franklin on April 20, 2000, gave the following recitation of the facts upon which the “violation of state law” disciplinary infraction was based:

On 04/20/2000 at approx. 7:00 AM I CO [Corrections Officer] Ring
wa s dri ving down the Chicken House Road when I noticed a black plasticbag lying on the side of the road. Upon investigating I found that the bag contained 4

plastic bottles of c

lear liquid

and 1 bottle of
a amber color

liquid. When the bottles were opened they had a strong smellof alcohol. I then took the bottles to the sally port and notified Lt. Miller. Lt. Miller took charge of the bottles and had me replace themwith rocks and re turn the ba g whe re I f oun d it . Sg t. K . Boyd
was watching th e bag a nd no tified via radio th at inmate Cedric Fran klin # 230639 and inmate Robert Brown #153069 were on a tractor pulling a cart and

had stopped and inm

ateFranklin got off and pickedup the bag. The tractor procee ded toward the recycle area. When inmate Gary

Reeves #217481 ca

me out of the recycle building heading toward the tract or I stopped th

e tractor and as

ked inma t e Franklin where the bag was. He stated he didn’t have it. Sgt . Boyd locatedthe bag by

the cardboard a

rea. Inmate

then made th e statement that inmate Reeves had told him to pick it u p. Inmate Franklin, inmat e Reeves and inma te Brown are charged with violation of state law and placed i n unit 2 pen ding discip linary hearing.

At the April 25, 2000 hearing, a three-person disciplinary board heard the testimony of Mr. Franklin, Officer Ring, and Sergeant Boyd a nd received into evidence pictures of the five bottles that had been discovere

d in the black plast

ic bag. Therea

fter, the board f

ound Mr. Franklin

guil ty o f “violating state

law.” As a result of his conviction, Mr. Franklin received ten days in punitive segregation, the loss of his truste e status, and th

e loss of his prison job. Both the warden and the Commissioner of Correction affirmed the disciplinary board’s action.

II.

More than twenty-five

years ago, the

United States Supreme Court prescribed the minimum proceduraldue process rights of prisoners facing prison disciplinary proceedings. The Court stated that prisoners were entitled to (1) written notice of the claimed infraction at least twenty-four hours prior to the discip linary hearing, (2) a hearing before a sufficiently impar tial body, (3) a limited right to call witnesses and present documentary evidence, and (4) a written statement of the fact-finders
as to the evidence relied upon and the reasons for the disciplinary ac tion. Wolff v. McDo

nnell , 4183 The Court specifically declined t o require that prisoners charged with disci plinary infracti

ons be afforded the rightof confronta tion and cro ss-examinatio n and the righ t to counsel. Wolff v. M cDon ald , 418 U.S. at 567-57 0, 94 S.C t. at 2980 -82.

4 E.g. Uniform Disciplinary Procedures, Tenn. Dep’t of Corr., Policy Index No. 502.01 (Mar. 1, 2001).
-3- U.S. 539, 563-66, 94 S. Ct. 2963, 2978-79 (1974). 3 These minimum rights exist independent of any further expansion of procedural safeguards that might be made available by statute, regulation, or pol icy.

The Wolff v. McDo nnell decision did not prevent prisons and j ails from expanding the proceduralsafeguards in

prison disciplinar y proceedings or from providing details reg arding how the con sti tut ion all y r equired minimum safegua rds would be provid

ed. In fact,

during the past twenty-five

years, prisons in Tennessee and elsewhere have enacted policies and rules defining the proceduralsteps in aprison dis ciplinary proc eeding. 4 It is not unco mmon that these proce dures go beyo nd the minim

um procedural due process requirements identified in Wolff v. McDo nnell . For example, even though the Court had declined to extend to prisone rs the right to counsel, the Te nnes see Department of Cor rection permits a

ttorneys to b

e present at disc

iplinary pr

oceedings. Tenn. Dep’t of Corr., Policy Index No. 502.01 VI.E.2.h. During the twe nty years following the Wolff v. McDo nnell decision, the state and federal court s were deluged

with prisoner lawsuits complaining of due process de

privations for ev

en th e most minor departures from prison disciplinary

procedures.In 1995, to stem the tide of these s

orts of suits, th e United St ates Supreme Court revisited prison disciplinary proceedings to determine whether prisoners had a constitutionally protected liberty intere st in the procedures prescribed in the statutes, regulations, or policies governing prison disciplinary proce edings. The Court

held that the proceduralrights afforded by statutes, regulations, or policies rose to

the level of a con

stitutionally protected liberty interest only when the proceeding has imposed “atypical and significant

hardship
on the i nmat e in relation to the ordinary aspects of prison life.” Sandin v. Conner , 515 U.S. 472, 484, 115 S. Ct. 2293, 2300 (1995).

In the wake of the Sandin v. Conner decision, it is important to recog

nize that the cours

e of a prison disciplina

ry procee ding is shaped by

two legal forc

es. First, it is shaped by the minimum proceduraldue process requirements imposed by the federal and state constitutions. These are the procedures recognized in Wolff v. McDo nnell . Second, it is shaped by the statutes, rules, and procedures dictating how the discipline of prisoners should be carried out. The Sandin v. Conner decision addresses the latter, not the former. Accordingly, prisoner s facing disciplinary

proceedings
are entitled to (1) timely written notice prior to the disciplinary hear ing, (2) a sufficiently impartial hearing body, (3) a limited right to present evide nce, and ( 4) a written statement of the evidence relied upon and the reasons for the disciplinary action, regardle ss of whether they ar

e facin g punishment that is atypical and significant in relation to the ordinary aspects of prison life.

III.

Our sole task in this case is to dete

rmine whether Mr

. Franklin rece

ived minimally

adequate notice of the disciplinary charges he was facing . Mr. Franklin asserts that he did not becau se th e5 The Departme nt apparen tly added this requir ement some months af ter Mr. Frankli

n’s disci plinary hear

ing when it amended the de

finit ion of t he VSL offense by adding the following se ntence: “T he incident re port shall cite the state law and TCA code.” T enn. Dep’t of Corr., Policy Index No. 502.05 VI.A.73 (Dec. 1, 2000 ).

6 Even if Sandin v. Co nnor were applicable, t he majority has

correctly poi

nted out that the three punishmen ts meted out to Mr. Fran klin for the VSL infrac

tion do not

consti tute pun ishment that i s atypi

cal and si

gnifi cant in relati on to the ordinary

aspects of pri son life.
-4- written notice he received on April 20, 2000, did not cite the specific state statute that he and his two confederates allegedly violated when they picked up the black plastic bag and carried it to the prison recyc lin g fac ili ty.
As the United States Supre me Court noted, the

purpose of providing a pr

isoner with timely written notice of disciplin ary charg es is to enable him or her

to marshal the fac

ts in his or her favor andto prepar e a defense

. Wolff v. McDo nnell , 418 U.S. at 564, 94 S. Ct. at 2979. To be const itutionally sufficient, the n otice must adequa

tely inform t

he person to whom th

e notice is directed of the nature of the proceedings and the nature of the matters to be addressed.

Due process requires that the notice must, under all the circumstances, apprise all interested persons of the pending action in order to afford them an opportunity to present their case. Brown v. Tennessee Dep’t of Safety , No. 01A01-9102-CH-00043, 1992 WL 63444, at *4 (Tenn. Ct. App. Apr. 1, 1992) (No Tenn. R. App. P. 11 application filed).

At the time of Mr. Franklin’s disciplinary hearing, the De

partment’s polici

es did not require that written disciplina

ry reports for VSL in

fractions conta

in a citation to the s

tatute alleged

ly violated. 5 By the same token, neither the federal nor the s tate constitutions r equire a specif

ic statutory citation, as long

as the other fac

ts included in the no

tice reasonably

apprise the prisoner

of the conduct deemed to be an infraction of the disciplinary rules. The facts included in the April 20, 2000 disciplinary report plainly put Mr. Franklin on notice that the pr ison officials believed that he andhis two confederates were attempting to obtain contraband when they picked

up the black plasti

c bag from the side of Chicken House Road an d carrie d it back to the recycling facility . For the purposes of procedural due process, it matters little that Mr. Franklin and his conf ederates were unsuccessful in their efforts. The information in the disciplinary report provided Mr. Franklin with sufficient informati on to defend himself at the April 2 5, 2000 dis ciplinary hear ing.

Acco rdi ngly, I would find that the April 20, 2000 disciplinary rep ort compl ied with the written notice requirements of Wolff v. Mc Donnell because it conta

ined sufficient in

formation to enable Mr. Franklin to

defend himself. The Sandin v. Connor analysis pla ys no role here because Mr. Franklin has not pointed to any depa

rture from applic

able regulations or procedures with regard to the April 20, 2000 report notifying him of the alleged VSL violation. 6

_____________________________ WILLIA M C. KOCH, JR., JUDGE