1 Rule 10 (C ourt o f A ppe als). M emorandum Opinion. - This Court , wit h the conc urrence of

all judges participati ng in t

he c as e, may affi rm, reverse or modify the act ions of the t

rial court by memorand um opinion when a formal opinion would have no precedential value. When a case is decided by memo randum opinion i t shal l be desi gnated “MEMORANDU M OPINION”, shal l not be p ublishe d, and shall not be ci ted or rel ied on for any rea son in a ny unr elat ed
case. 

### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON ASSIG NED O N BRIE

FS OCT OBER 31 , 2002 STATE EX REL, QUINN JOHNSON v . MIKE HOLM, ET AL 

### . Direct Appeal from the Circuit Court for Hardem an County No. 9453; Jon Kerry Blackwood, Judge

No. W2002-00965-COA-R3-CV - Filed April 9, 2003

This is an appeal of a denial of a petition for a common law writ of certiorari. The petition was filed by a prisoner seeking review o f two dec isions ag ainst him by the priso n disciplin ary

board. B ecause the petition was filed more than sixty day s after the first decision, we have no jurisdiction to add ress the issues presented

regarding that

decision. The petition was timely filed in re gards to the second decision against Appellant, but we find no merit in Appellant’s contentions and affirm the ruling of the trial court. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. H IGHERS , J., delivered the opinion of the court, in which D AVID R. F ARMER , J., and H OLLY K IRB Y L ILLARD , J., joined. Quinn Johnson, Plymouth, WI, pro se Tom Anderson, Jackson, TN, for Appellee Memorandum Opinion 1 Facts and Procedural History
On August 3 1, 2001, A

ppellant Quinn Johnso n (Mr. Johns on), a pr isoner a t the Whiteville Correctional Facility, wa s asked to give urine samples for testing for drugs. One of the samples was sent out for a confirmation test. OnSept ember 1 1, 200 1, fol lowi ng a full hearing, Mr. Johnson was found guilty

of drug use and se

ntenced to thirty day s of discip linary

se gregation . Mr. Johnson-2-

appealed to the warden, Mike Holm,(“warden”), but on September 24, 2001, the warden issued a ruling denying

the appeal. This denial included a findingthat the prescription medicine Mr. Johnson was taking could not create a false positive. On October 22, 2001, Mr. Johnson filed for a reconsiderationof this denial based on new evidence. This appeal was also denied and resulted in a new charge being

filed against Mr. Johnson for hinderin g the pe

rforman ce of a s taff mem

ber. This cha rg e stemmed from the warden’s finding that the information provided by Mr. Johnson in his filing was false. A hearing

on this sec ond char

ge washeld

on November 12, 2001 resulting in a finding of guilt and a sentence of eight hours of extra duty and the loss of ten day s of re c reation. Mr. Johnson did not appeal this decision to the warden, feeling it would be futile.
Mr. Johnson then

filed a Pe

tition for Writ of Cer

tiorari pursuant t

o Tennes s ee Code Annotated sections 27-8-101 and 27-8-102 in the Circuit Court of Hardeman County on December 31, 2001. In his petition, Mr. Johnson alleged various violations of his Due Process rights aswell as other grounds for overturning the s entence s imposed against him. On February 2, 2002, the wardenfiled a Motion to Dismi ss pursuant to Tennessee Rule of Civil Procedure 12.02(6) alleging Mr. Johnson did not present a claim on which relief could be gra nted. The Motion to Dismiss was heard on March 22, 2002, and on M arch 27, 2002, an order was entere d granting the warden’s motion. Mr. Johnson filed an appeal t o this Court

and alle ges the

sameDue Process violations and other grounds that he alleged in his Petition for Writ of Certiorari in the circuit cour t. The issues presented to us by Mr. Johnson are:
I. Appellant’s 14th Amendment Due Process Rights were violated when his assigned staff advocate failed

to gather readily

available evidence that could have exonerated him wh ich app ellant could not obtain himself due to his placement in Temporary Lock Up.
II. Appellant’s 14th Amendment Due Process Rights were violated when Appe l lee s failed to provide him with exculpatory evidenc e held in their possession.
III. Appellant’s Substantive Due Process Rights were violated when the Appellees failed to consider evidence offered in his defe nse.
IV. Appellee’s officia l policy of using a scree ning tes t as a

confirmation test as evidence to establish

guilt fo r the use of drug s is uncons titutional b oth on its f

ace and as applied t o the Appe

llant.
V. Appellees violated App ella nt’s 1st Amendment rights when they retaliated agains t him for fi ling an a

ppeal of the first conduct r

eport.
VI. There was [sic] sufficient evidence to support the Appellee’s decision.
VII. The Appellees violated Appellant’s 14th Amendment Due Process rights when they failed to make an adequate recor d for the basis for their decisions.-3- Law and Analysis
Mr. Johnson presented his petition for a Writ of Certiorari under Tennessee Code Annotated sections 27-8-101 and 27-8-102. We have held that “the functions of prison disciplinary

boards are administrative and not judicial [and] [t]herefore, the statutory writ of cer tiorari, T.C.A. § 27-8-102, is no t a va il ab le fo r r ev ie w o f t he pr oc ee di ng s t ak en by a pr is on di sc ip li na ry b oard.” Buford v. Tennessee Dept. of Correction , No. M199800157COAR3CV, 1999 WL 1015672 (Tenn. Ct. App. Nov. 10, 1999). Thus, we will consider Mr. Johnson’s appeal under the co mmon law w rit of certiorari codified at T.C.A. 27-8-101.
Mr. Johnson appeals two findings against him. We willdeal with the first finding first. Mr. Johnson had a hearing on September 11, 2001 in which he w as found guilty of an inf raction. Mr. Johnson appealed this decision to the warden and that appeal wa s denied in a decision rendered on September

24, 2001. Mr. Johnson filed his Writ of Certiorari on December 31, 2001. Bec ause Mr. Johnson did not file his common law writ of certiorari within sixty day s of the deci sion aga

inst him, jurisdict ion over t his case was not pr

oper in the court b elow and is not prop er in this C ourt:
Petitions for a co mmon-law writ of c ertiora

ri must be f

iled within

sixty day s after the entry of the or der or ju dgment a

t issu e. Tenn. Co de Ann. § 2 7-9-102 ( 2000). Th is statutory time limit is mandatory and jurisdictional. Thandiwe v . Traughbe r, 909 S.W.2d 802, 804 ( Tenn.Ct.A pp.1994) . Thus, if a

petitio n forcommon-law writ of certior ari is not t

imely filed, the courts have no jurisdiction to review the contested decision. Turner v. Tennesse e Bd. of Pa roles, 993 S.W.2d 78 , 80 (Ten n. Ct. App.1999); Whe eler v. Ci ty of Mem phis, 685 S.W.2d 4, 6 (Te nn. Ct. App.1984); Fairhaven Corp. v. Tennessee Health Facilities Comm'n, 566 S.W.2d 885, 887 (Tenn. Ct. App.1976).

Reid v. Lutche , No. M1997-00229-COA-R3-CV, 2001 WL 55783, at *4 (Tenn. Ct. App. Jan. 24, 2001).
Lacking jurisdiction over the issues presented by Mr. Johnson relating to his being found guilty of the unauthorized use of drugs or intoxicants by the disciplinary board, we

move to the second finding against Mr. Johnson.

The second finding resulted from a petition submitted b y Mr . Johnson to the warden asking the warden to reconsider his denial of Mr. Johnson’s appeal. This petition was filed on October 22, 2001. The warden denied thi s petition and served Mr. Johnson with another conduct report for hindering the performance of a staff membe r. A hearing was held on November 12, 2001 where Mr. Johnson was f

ound gui l ty and sentenced to loss of ten days of recreation and eight hours of extra du ty. Mr. Johnson’s common law writ of certiorari filed on December 31, 2 001 was tim ely to contest the findings of the disciplinary board on this matter.-4-

This Court has stated: Under a petition for common law writ of certior ar i, a court's review of an administrative agency ’s decision is limited to a determination of whether the administrative body acted within i ts juris diction or acted illegally , arbitrarily, or ca pr ic io us ly. Cooper v. Williamson County Bd. of Educ. , 746 S.W.2d 176, 179 (Tenn. 1987). Th

e common l aw writ

does not provide a remedy where a petitioner challenges the correctne ss of the decision of the decision-maker. Powell v. Parole Eligibility

Review Bd. , 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994). "The common law writ of c ertiora

ri is not av ailable t

o test the intrinsic corr ectness of the law or facts of a particul ar case." Yokley v. S tate , 632 S.W.2d 123, 126 (Tenn. Ct. App. 1981). Clark v. Rose , No. 2002 -01245-C OA-R3-CV , 2002 Ten n. App. L EXIS 96 (Tenn . Ct. App. February 5, 2003). Mr. Johnson’s petition was dismissed by the trial court pursuant to a motion to dismiss filed by t he ward en. We hav e previously

stated ou r standa rd of review in suc

h a case as: A motion to dismiss for failure to state a claim upon which relief may be g ranted t ests the legal sufficiency

of the plain tiff's claim , not the st rength of the petit ioner 's proof. Cook v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn.1994). The grant of a motion to dismiss may be affirmed only if the allegations in the complaint, taken as true and construed liberally in favor of

the plaintiff, fail to state a claim under which the plaintiff would be entitled to relief. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.1997). Ther efore , when re viewing a trial c ourt's g

rant of motion to dismiss, all factual allegations are taken a s true, and the trial court's conclusions of law are reviewed de novo on the record with no presumption of correctness. Doe v. Su ndquist, 2 S.W.3d 91 9, 92 2 (Tenn.1999); Tenn. R.App. P. 13(d). Hall v. Campbe ll , No. W2002

- 00301-COA-R3-CV, 2002 WL 31423842, at *3 (Tenn.Ct.App. October 29, 2002).

Mr. Johnson claims that “he was at a loss for the basis of the charge because a ll of the information he provided to the Warden was accurate and a c opy of the document

ation wasin the re cord and could be confirmed.” If this is taken a s true, we are still left w ith a with a

record that showsnothing i llegal , arbitrary or capricious in either the p roceed ings held by the prison disciplinary board or the punishmentgiven to Mr. Johnson. Mr. Johnson’s petition is an attempt to test the factual find ing s of the boar d, and, a s stated a

bove, thisis not the purpose of a writ of cert iorari. Thus, we affirm the court below.-5- Conclusion
For the foregoing r

easons, we affirm the judgment of the trial cour t. Costs are judged against Appellant Quinn Johnson, for which execution may issue, if necessary

.

___________________________________ ALAN E. HI

GHERS, JUDGE