# FILED
November 25, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

MONROE E. DAVIS, ) ) Petitioner/Appellant, ) ) Appeal No. ) 01-A-01-9712-CH-00755 VS. ) ) Davidson Chancery ) No. 96-1310-I COMMISSIONER DONAL ) CAMPBELL, ET AL., ) ) Respondents/Appellees. )
APPEALED FROM THE CHAN CERY COUR T OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE IRVIN H. K ILCREASE, JR., CHANCE LLOR

MONROE E. DAVIS, #130909 Middle Tennessee Correctio nal Complex-Annex 7466 Centennial Boulevard Nashville, Tennessee 37209 Pro Se/Petitioner/Appellant JOHN KNOX WALKUP Attorney General & Repor ter ABIGAIL TURNER Assistant Attorney Gener al 425 Fifth Avenue North Nashville, Tennessee 37243-0488 Attorney for Respondents/Appel lants

AFFIRMED AND REMAN DED

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

## O P I N I O N- 2 - An inmate who was

disciplined for threatening a correctional officer filed a Petit ion for Writ of Certiorari, claiming that he was denied due process in th e disciplinary proceedings. The trial court dismissed the petition. We affirm.

I.

Monroe E. Davis, an inmate in the Cold Creek Correctional Facili

ty, was temporarily housed in the M idd le Tennessee Reception Center. On February 22, 1996, he allegedly direc ted a threatening statement at a co rrectional officer. Apparently he and another inmate were discussing the violent death of a fem ale correctional officer which had been reporte d on the news that day, when he pointed to officer Sheri Smith and sa id “They are going to find you killed in a van next.” He allegedly repeated thi s statement several times.

That evening, a correcti onal officer delivered a discipl inary report to Mr. Davis, stating that he was being charged with threatening an employee. The report described the incident and named Correctional Officer Ta te as a witness. Mr. Davis refused to sign the report. The next day he was s ent back toCold Creek Correcti onal Facility.

Another

copy of the disciplinary char ge was faxed to Cold C reek, with a notice that the disciplin ary hearing had been sch eduled for February 28, 1996. Mr. Davis acknowledges that the fax was

delivered to him on the mor ning of February 26. He was transported to the Middle Tennes see Reception Center for the hearing, which was conducted by a board of three cor rectional employees. M r. Davis wa s represented by an inmate advisor. Mr. Davis testified , and admitted that hehad been discussing the death of a female officer, b ut denied tha t he had directed any threat to Office r Smith. O fficer S mith tes tified t o the con trary, as did Officer Tate. Mr. Davis did not call any wi

tnesses on his behalf.- 3 - At the conclusion of the hearing, the board unanimously found Mr. Davis to be guilty of threatening an emp loyee, and sentenced him to fifteen days in segregation, and another fifteen days to be served as sixty days suspended. All three members of the board signed a hearing summary, which recited the board’s findin gs of fact, and stated the evidence it relied upon in reach ing those findings.

Mr. Davis appealedhi s disciplinary conv iction to the warden, w ho dismissed the appeal on March 4, 1996. He then filed an appeal to the Commissi oner of the Department of Correction on March 29, 1996, which was r eturned unanswered because the fifteen day time limit for such appeals had expired.

On April 25, 1996, Mr. Davis filed his Petition for Writ of Certiorari in the ChanceryCourt of Davidson County, naming as respondents the Co mmissioner of the Departmentof Correction, the Assistant Commissioner, the W arde n, and four corre ct ional employees. The Department filed a Motion for Summary Judgment, which was grant

ed on December 1, 1997. This appeal foll owed.

II.

A common law Writ of Certiorari will issue only when an inferior tribunal has exceeded its

jurisdiction, or whe n its proceedings are shown to be arbitr ary, illegal or fraudulent. Powell

v. Parole Eligibility Review Board, 879 S.W.2d 871 (Tenn. App. 1994). Mr. Davis alleges that he received inadeq uate notice of the p roceeding s against him, and that he was denied the opportunity to present witnesse s on his behalf. He also alleges tha t the outcome of the disciplin ary hearing w as pre determined, because one of the respondents had told the heari ng panel to find him guilty. These allegations amount to a claim of denial of due process , and th us of illegality on the part of the respondents.- 4 - The United Stat es Supre me Court has noted that the uniq ue requi rements of prison life necessarily involve the retraction or withdrawal fro m inmates of many rights and priv ileges that

are routinely afforded to ordinary citizens. Wolff v. McDonnell, 418 U.S. 539 (1974). In one case, the Court has held that those who a re i ncarcerated pursuant to a v alid conviction of a cri me are not entitled to constitutional due process in regard to prison disc iplinary procedures that can result in brief periods of

disciplinary seg regation. Sandin v. Conner , 515 U.S. 472 (1995).

Sandinv. Conner

involved a discip linary infraction t hat resul ted in Mr. Conner’s placement in punitive seg regation for thirty day s. The Court reasoned that the possibility of such confinement was well w ithin the conditions inhere nt i n t he sentence of thirty years to life originally imposed upon him, and that its possible application did not create a liberty interest that would enti tle him todue proces s protections. Such an interest would onlyarise if the prospectiv e punishment involved significant

hardships, beyond the ordi nary incidents of prison life. Mr. Davis has not stated any

reason why the

punishment imposed in this case should be considered in such a light.

But even if thepunishment imposed upon Mr. Davis was so far bey ond the ordinary incidents of pri son l ife as to require the Depar tment to afford him due process protections, the rights to which he would be enti tled would still be l imited. As the Court said in Wolff v. McDonnell , 418 U.S. 539, 556 (1974): “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of right s due a defendant in such proceedings does not apply.”

The rights that do apply include advance written noti ce of the charges at least twenty-four hour s pr ior t o the hearing, a limited r ight to call witne

sses and presentdocumentary evidence, an impartial decision maker, and a written statement of the evidence re lied upon, with the reasons stated for the action taken. After a- 5 -

thorough examination of therecord, we conclude that despite Mr. Davi s’ complaints to the contrary, the proces s he received was c

onsistent with the req uirements of Wolff , if indeed those requirements ar e even relevant.

In his affidavit, Mr. Dav is denies th at he was given a copy of the disciplinaryreport on February 22. Even if the trialcourt considered his deni al to be true (as it was obli gated to do when ruling on a Motion for Summar y Judgment, see Mike v. Po Group , 937 S.W.2d 790, 792 (Tenn. 1996), this would s till not raise a question of material fact for purposesof the motion, as Mr. Davi s admitted receiving notice of the charges and of the hearing more than twenty-four hour s before the hearing was scheduled.Further, Mr. Dav is’ inmate advisor

stated to the Board that he had had enough time to prepare a d efense.

Mr. Davis claims, however, that he did not have enough time to prepare an adequate defense, though he does not specify what additional steps he would have taken if he had been granted more ti me. Since he complains about his inability to call witnesses, w

e presume that he would hav e wanted to contact those w ho might have bee n will ing or able to t estify on his behalf.

But the Supreme Court has stated that the right of an inmat e to obtain th e presenc e of witnesses in a disciplinary proceeding is limited by the “necessary discretion”

of prison officials, who must balance due process against the requirements of institutional safety and valid correctional go als. Su ch goal s inclu de “the s wift punishmentthat in individual cas es may be essential to car rying out the correctional program of the institution.” Wolff v. McDonnell at 566. The Court went on to r ule that prison administrators may tail or their procedures and pol icies to meet the individual requirements of their own institutions.- 6 - In Tennessee, the procedure for a prisoner who wishes to cal l witnesses is to prepare and submit form CR-3511 at least twenty-four hours in advance, listing the witnesses he wishes to call, and requesting their presence at his hearing. Prison officials may then arrange for the witnesses to appear, if doing so does not interfere with security considerations or with other legitimate concerns.

The record shows that

Mr. Davis did not submit the required form. He claims that he did not have time to prepare the form, and that the witnesses he w ished to call had a ll be en transferred to other institutions. While it is clear that he di d not have the opportunity to interview prosp ective witnesses to find out in ad vance what they would say, we do not believe that under the req uirements of Wolff he would be entitled to do so. He could, however, have listed those inmates and other individuals who were present at the time o f the alleged threat, and who could have testified as

to what really happened. We find it significant that nowhere in the pleadings, or in the briefhe has presented to this cour t, do es he namea single person who he would expect to testi fy on hi s behalf.
Finally, Mr. Davis claimed that one of the respondents, Sgt. Eric Qualls, told him that the disciplinary board would fin d him guilty, and that he advised the board to make a f indi ng of guilt. The record shows that Sgt. Qualls was originally nam ed as the chairperson of the disciplinary board, but that Mr. Davis object ed i n writingto his appointment, allegi ng that a close personal r elationship between Sgt. Qualls and Sheri Smith would prevent him from being impartial.

The warden honored Mr. Davis’ request and removed Sgt. Qualls from the b oard, re placing hi m as chair person wit h Angela S ledge, an administ rative assistant with the department. In her affidavit, Ms. Sl edge denied that anyone had told the board to find Mr. Davis guilty . We note, however, that even if Sgt

. Qualls had made the alleged stateme nt (which wou ld have been extremely unprofessional on his- 7 -

part), there is nothing in the record to indicate that the board was obligated or inclined to take orders from him. We the refore cannot find, on the basis of the record before us, that Mr. Da vis was depriv ed of a hearing before an impartial decision-making body.

III
.

The judgme nt of the trial court is affirmed. Remand this cause to th e ChanceryCourt of Davidson County for further proceedin gs consi stent with this opinion. Tax the costs on appeal to the appellant.

_________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ WILLIAM B. CAIN, JUDGE