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

### IN THE COURT OF APPEA LS OF TENNESSEE

AT NASHVILLE

E. L. (ELDRED) REID, ) ) Petitioner/Appellant, ) ) Appeal No. ) 01-A-01-9803-CH-00168 VS. ) ) Davidson Chancery ) No. 97-118-II W. G. LUTCHE, LEGAL ASST ., ) et al., ) ) Respondents/Appellees. )
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE CAROL L. McCOY, CHANCELLOR

E. L. (ELDRED) REID Special Needs Facility 15-A, 11-A 7575 Cockrill Bend Industr ial Road Nashville, Tennessee 37209- 1057 Pro Se/Petitioner/Appellee JOHN KNOX WALKUP Attorney General and Reporter KIMBERLY J. DEAN Deputy Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243

AFFIRMED AND REMAN DED

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

## O P I N I O N

An inmate in the custody of the Department of Correcti on filed a petition for declaratory judgment and/or for writ of certiorari, to challenge a prison disciplinary conviction and alleged irregulariti es in the prison grievance procedure. The trial court dismissed the petition. We affirm.
I. Administrative Proceedings

Our understanding of the facts of this case is incomplet

e, because the petition and other documents filed in the trial court by prison inmate E.L. (Eldred) Reid
are largely incoherent. However, by reading those filings in conjunction with his brief
on appeal, we gather that while he was incarcera ted at the Northwest Corr ectional Ce nter (NWCC), Mr. Reid was convicted of being in possession of medications no t permitted by regulations. His punishment included disciplinary segregation and loss of sentence reduction credits . Mr. Rei d claime d that the medications were not his, and that someone else deliberat ely placed them with his other property.
Mr. Reid subsequently filed a series of request s for declaratory orders with the Department of Correc tion. These requests are not in the record , and it is therefore impossible to

determine their substance. However, Mr. Reid attached to his petition a letter from W.G. Lutc he, legal assistant to the Depar tment of Correction, denying the requests. The let ter is dated November 22, 1 996.

Mr. Reid f iled his petition for declaratory judgment or writ of certiorari
on January 10, 1997. As respondents, Mr. Reid named Commissioner of Correction Donal Campbell, NWCC Warden Fred Raney, Correctional Sergeant Terry Hopper, and W. G. Lutche. Mr. Lutche was apparently never served with process. We note- 3 -

that w hen asking for either declar atory judgment under the UAPA or for writ of certiorari, the proper party for Mr. Reid to name as respondent would have been the Department

of Correction, because ultimately only the Department can give him the relief he seeks.

Mr. Reid also apparently attempted to win a reversal of his disciplinary conviction by using thegrievance procedure establ ished pursuant to Tenn. Code Ann. § 41-21-804 et seq. He claimed in his petition that the statute creating the grievance process was unconstitutional, and also complained that the Department did not follow the procedures set out in the s tatute.
Respondents Fred Raney, Terry Hopper, a n d (in his official capa city only) Commissioner Donal Campbell, filed a Tenn. R. Civ. P . Rule 12.02(6) motion to dismi ss the p etition for failure to s tate a claim upon which r elief can be granted. The trial court granted the m otion as to all respondents on Augu st 13, 1997. This appeal followed.
II. Declaratory Judgment

Mr. Reid’s petition asked the chancery court to grant him a declaratory judgmentand/or a writ of certiorari. The Uniform Administrative Procedures Act (UAPA), Tenn. Code Ann. § 4-5-101 et s eq., permits the court to d et erm ine “[t]he legal validity or applicability of a statute, rule or order of an agency.

. . ,” and to render
a declaratory judgment if the “complainant has petitioned theagency for a declaratory order and the agency has refused to issue a declaratory order.” T enn. Code Ann. § 4-5-224.

The State argues that Mr. Rei d is not entitled to the benefit s of the UAPA, since the

disciplinary polici es whose application he objects to are not “rules”- 4 -

as that term is defined in the Act. The Act defines a rule as “each agency statement of general applicability that implements or prescribes law or p olicy or describes the proceduresor practice requirem ents of any agency.” Tenn. Code Ann. § 4-5-102(10). The term exclude s “[s]tat ements concerning only the i nternal management of state government

and not affecting private ri ghts, privileges or pro cedures available to the public.”Tenn. Code Ann. § 4-5-102 (10) (A). Und er t he UAPA, rules must be promulgated by a lengthy process whic h i ncludes public hearing, approval by the attorney general, and publication by the secretary of st ate.

The uncertainty this language has create d as to whether the UAPA is applicable to prison disciplin ary polici es and procedures was resol ved by a recent decision of ou r Supreme Court, Mandela v. Campbell , 978 S.W.2d 531 (1998). Because of the ambiguity of Tenn. C od e Ann. § 4-5-102(10), the Cour t had to examine related statutes to determine the legislative intent in this matter. In doing so, it found that the legislature had p rovided the Department of C or recti on with broad discretionary power to handle itsdisciplinary responsi bilities without submi tting to the rule-making requirem ents of the UAPA.

Furthe r, the legislature amended Tenn. Code Ann. § 4-5-102(10) in 1998 b y s pecifically excluding “[s]tatements concerning i nmates of a correctional or detention facility” from the d efinition of rules whic h are governed by and interpre ted unde rthe UAPA. (1998 Public Acts,Chapter 740). Since the Act also excludes “disciplinary and job termination proceedings f or prison ers” from the definiti on of “contested cases” under the UAPA, Tenn. Code Ann. § 4-5-106(b ), the Mandela opinion and the 1998 amendment have clearly shut the door on any future use of the UAPA to challenge discipl inary proceedings in the Department of Correction.

We note however, that even if we found that the UAPA permitted the court to review the applicatio n of the Department’s disc iplinary policies to M r. Reid,- 5 -

he would still not be entitled to relief. A court may declare a rule or o rder invalid under the UAPA “only if it finds that it violates c onstitutional provisions , exceeds thestatutory authority of t he agency . . . or otherwise violates state or federal law.” Tenn. Code Ann. § 4-5-224(c). The numer ous filings Mr. Reid has submitted contain general allegationsof irregularities related to the materials and resources (or lack of them) made ava ilable to en able him to prepare for his defense, but the facts alleged are si mplynot sufficient to support hi s contention that the Departme nt acted unconstitutionally or illegally, or that it failed to substantiall

y follow its

own procedures.

As for Mr. Reid’s cla ims regarding the griev ance procedure, he did not state any arguments to support his contention that the

statute creating the procedure is unconstitutional. Further, as the chancellor noted, Mr. Reid failed to file the affidavit required by Tenn. Code Ann. § 41-21-806(a):

(a) An inmate who files a cl aim that is subj ect to review by the grievance committee established by the department

shall file with the court an affidavit stating the date that the grievan c e was filed and the date the fina l decision was received by the inmatewith a copy of the final decision from the grievance committee.

Withoutthe affidavit and other suppor ting materials, the chance llor was unable to determine whether Mr. Reid’s disciplinary convictio n was even subject to grievance review, letalone whether the grievance process was abused. Thus, there
can be no meaningful review of the appellant’s grievance claims, whether consi dered under the UAPA or under the writ of certiorari.

III. Writ of Certi orari- 6 - The scope of review permit ted under a petition for a comm on-law writ of certiorari, Tenn. Code Ann. § 27-8-101, like that af forded by a petition for declaratory jud gment, is ver y narrow. The writ m ay be granted only if “an inferior tribunal” (in this case, the disciplinary board) can be sh own to have exceeded its jurisdiction or to have acted illegally, fraudulentl y or arbitrarily. Yokley v. State , 632 S.W.2d 123 (Tenn. App. 1981); Powell v. Parole Eligibility Review Board, 879 S.W.2d 871 (Tenn. App . 199 4). Mr. Reid has pres ented no facts to indicate that the disciplinary board exceeded its jurisdicti on, or that it acted illegal ly, fraudulently or arbitrarily. Thus, the common law writ does not apply.

But Mr. Reid also claim s that he is entitled to a statutory writ of certiorari under Tenn. Code Ann. § 27-8-102. The scope of review under the statutory writ is
a bit broader than that under t he commo n-law writ, in that i t permits the reviewi ng court to examine the intrinsic correctness of the decision of the inferior tribunal. Boyce
v. Williams , 389 S.W.2d 272, 276 (Tenn. 1965). Mr. Reid cites an unpublished case bythe Western Section of this court, Williams

v. Department of Correc tion , App. No. 01A01-9503-CV-00046 (filed Jackson, October 2, 1995) in support of

his argument. In that case, the court rever sed the trial court’s det ermination th at it did not have jurisdiction to use the statutory writ to examine Mr. Willi ams’ claim that he was denied due process during a disci plinary hearing.

The State argues that the Wi lliams case was decided wrongly . The appellee notes that the statutory writ only applies to judicia l proceed ings, and contends that disciplinary proceedi ngs before prison authorities (though not governed by the UAPA) should be proper ly understood as being admini strative in nature.

The State cites two cases of our Supreme Court in support of this thesis: State ex rel Turner v. Gore, 175 S.W.2d 317 (Tenn. 1943) , and Ray v. State , 577 S.W.2d 681 (Tenn. Crim. App. 1978) . While neither of these casesis completely onpoint (bot h of them involved the question of whether double jeopardy appl ies when

the same conduct is subject bo th to criminal prosecution and disciplinary sanctions) the court declared in both of them that a prison disciplinary board is an administrative body, and that it does not exercise judicial functions.

In any event, thedisposition of this case does not require us to address that issue, as the remedy of certiorari, whether of the common-law or statutory variety, is not available to petitioners as of right. Its grant is within the sound discreti on of the trial court, Boyce

v. Williams , 389 S.W.2d 272, 277 (Tenn. 1965) , and it is usually not issued in the absence of unusual or extraordinary circumstances. Clark v

. Metropolitan

Government

, 827 S.W.2d 312 (Tenn. App. 1991). Mr. Reid’s petition in the trial court di d not pre sent any such circumstances. We therefore find that in dismissing his petiti on, the trial court acted w ell within its discr

etion.

IV.

The ord e r of the trial court is affirmed. Remand this cause to the Chancery Court of Davidson County for further proceedings consistent with this opinion. Tax the costs on appeal to the appellant.

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

_____________________________ WILLIAM C. KOCH, JR.,JUDGE