1 Uniform Disciplinary Procedures, TDO C Policy No . 502.05(VI)(A )(5) (Dec. 30, 1996 ) (“TDO C Policy”). 

# IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs M arch 13, 2001 TONY WILLIS, ET AL 

# . v. TENNESSEE DEPARTMEN T OF

CORRECTION, ET AL 

# . Appeal from the Chancery Court for Davidson County No. 99-3332-III Ellen Hobbs Lyle, Chancellor

No. M2000-01397-COA-R3-CV - Filed June 5, 2002

W ILL IAM 

## C. K OCH 

## , J R 

## ., J., dissenting.
The court has constructed its decision in this case using Sandin v. Conner , 515 U.S. 472, 115 S. Ct. 2293 (1995) as its foundation. I do not beli eve that Sandin v. Conner can carry the weight the court has plac ed on it. Accordingly, I diss ent, not because th e prisone r is entitled t

o judicial relief, buts imply because his petition states a claim upon which the sort of relief ava ilable through a common-law writ of certiorari could be granted.
I.
In mi d-1999, Tony Willi s and Edwa rd Tharp e were

cellmate s at the Tu

rney Cen ter in Hickman County. They were charged with attempted escape , a Class A disciplinary offense, 1 

## after a pair of pliers was discovered taped to the bottom of a fan in their ce ll. The pliers had appa

rently beenstolen from a maintenance worker. At separ ate disciplinary hearings conducted in August 1999, both Messrs. Willis and Tharpe were found guilty of attempted escape based on the pliers and other informat ion provid

ed by a c onfident

ial infor mant. The Class A Disciplinary Board punished themwith punitive segregation, involuntary administrative segregation, and a five dollar fine. The warden and the Co mmissioner

of Correction late

r upheld t he disciplinary bo ard’s decisions.
On November 18, 1999, Messrs. Willis and Tharpe filed a pro se pe tition for common-law writ of certior ari in the Chancery Court for Davidson County seeking judicial review and re versal of their convictions for attempted escape. Their petition alleged, a tleast as I understand it, that they weredenied a fair hearing in violation of their due process rights and that thedisciplinary board had acted arbitrarily and illegally by failing to follow the Department of Correction’s Unifor m2 The motion simply ass erted that the petition shou ld be dis misse d “[p]ur suant to Tenn. R. Civ. P. 12. 02(1) and (6).” This mot ion, li ke most of the moti ons fi led by t

he Civi l Ri ghts and Clai ms Divis ion in cases o f this sor t, fails to
com ply with the rudimen tary requi rements of moti on pr ac t i ce un de r t he Te nn es s ee Ru l es of Ci vi l Pr oc ed ur e. I n t er ms thateven first-yea r law stude nts can und erstan d, T enn . R. Civ . P . 7 .02( 1) req uires th at m otion s m ust “state with partic ularity the gr ounds t heref or.” For the purpos es of a Tenn. R. Civ. P. 12. 02(6) moti on, thi s means t hat t he moving party must state in it s motion why the plaint iff has fail ed to st ate a claim fo r which r eli ef can be grant ed. We have repe atedly reminded the Attor ney Ge nera l that inc ludin g the gro und s for a T enn . R. Civ . P. 12 .02( 6) m otion in a sep arate memorandum of l aw does not comply wit h Tenn. R. Civ. P . 7.02 (1). See, e.g. , Hickman v. Tennesse e Bd. of Paroles , No. M2000-02846-COA-R3-CV, 2001 WL 1222259, at *1 , n.2 (T enn . Ct. App. Oct. 16, 2001) (Tenn. R. App. P. 11 appli cati on pen ding ); Pen dleto n v. M ills , __ _ S

. W. 3d

__ _, __ _, 20 00 WL 108 950 3, at *2 , n.7 (Tenn. Ct. App . 2001); Robinson v . Cl ement , 65 S.W.3d 632, 635 n.2 (Tenn. Ct. App . 2001).

3 It is not al toget

her cl ear why the Cl erk and Master included this mem orandum of law in the appellate record in li ght of

Tenn. R. A pp. P. 24(a)’s clear admon ition that t rial brief s and counse l’s memoranda of la w are not part of the reco rd o n ap pea l. Atkins v. Kirkpatr ick , 823 S. W.2d 547, 549 (Tenn. Ct. A pp. 1 991 ); Aclin v. Spe ight , 611 S. W.2d 54, 5 6 (T enn . Ct. A pp. 1 981 ).

4 We h ave repe atedl y held t hat t his sta ndard s ubject -matt er j uris diction ar gument is without merit be cause Tenn

. Code Ann. §§ 27-8-104 (a), 27-9-1 02 (2 000) clearl y give the Chancery Court f or Davidson County subject matter juri sdic ti on over pet

it ions of thi s sort. The argument is even more t enuous in this case beca use ther e is absol utel y no basis for construing the petiti on as one seeking a s tatutor y w rit of certi orari . The pet it ion’s refe rence to Tenn. Code Ann. § 27 -9-1 01, e t seq. d oes n ot tran sform the p etition in to a p etitio n for st at utory wr it of certi oraribecaus e the procedures in Te nn. C ode An n. §§ 27-9 -10 1, - 114 apply e qua lly to co mm on- law and statuto ry w rits of ce rtiorari. Fentre ss Count

y Beer Bd. v. Cr

avens , 209 Tenn . 679, 685-86 , 356 S.W .2d 260, 263 (1962).



## -2- Disciplinary Procedures. Specifically, Messrs. Willis and Tharpe asser ted (1) that they were not providedadequate notice of the chargesagainst them and that they “were never told when, where, what, why or how they were attempting to escape,” (2) that theywere prevented from discovering and pres enting re

levant, “exculpatory” evidence and witnesses, ( 3) that they were convicted using evidencefrom a

confidential informant that was mishandled by thedisciplinary board, and (4) that their punishment was excessive. Approxima

tely seven weeks after Me ssrs. Will is and Tharpe filed their petition, the Office of the Attorney General, on behalf of the De partment, filed its customary motion for an extension of time to respond. Even though the trial court granted an extension to February 22, 20 00, the Attorney General was unable to file his customary conclusory motion to dismiss 2 

## until February 24, 2000. Because the motion was not accompanied by a memorandum of law, the Attorney General filed an identical motion to dismiss and a memorandum of law on February 25, 2000.
The Attorney General’s memorandum of law in support of the motion to dismiss is, f

or some reason, part o f the ap pellate record. 3 

## From it, we learn that the Attorney General’s motion was predicated

on two grounds. First, the Attorney General asserted that the trial court lacked subject matter jurisdiction over the petition because Messrs. Willis and Tharpe could not use a statutory writ of certior ari tosee k judicial review of the disciplinary board’s decision. 4 

## Second, the Attorney Generalinsisted th at the tri al court should dism

iss the pe tition “because

the disci plinary board neither acted unlawfully nor

exceeded its jurisdiction.” While one would have thought that the latter assertion would require at least a cursory re view of the record of

the disciplinary proceedings, the5 The legal basis for this assertion is San din v. Co nner and this court’s expansive interpretati on of S andi n v.

Conner

. 6 Of

course there are no f

acts in t he record other

than the al legati ons in the pet iti on which mu st be t aken as true. Royal Clothing Co. v. Hol loway , 208 Tenn. 572, 574, 347 S.W.2d 491, 492 (1961) ( holdi ng tha t in the absence of a
recor d, the fact

ual st atements i n a pet i t i on f or co mm on- law writ o f certio rari m ust be taken as true ); White v. Revco Discount Drug Ctrs. , Inc. , 33 S.W. 3d 713, 718 (Te nn. 2 000) ( hold ing t hatTenn. R. Civ. P. 12.02(6) m otions require the co urts to p resum e that a com plain t’s factu al alleg ation s are tru e).

7 W hile both M r. W illis and M r. Th arpe filed a n otice o f app eal, on ly M r. Tharpe has file d a b rief w ith this court. Accordingly, M r. Willis ’s appeal should be dism issed in accordance with Ten n. R. App. P. 29(c).

8 Sandin v. Conner , 515 U.S. at 484, 115 S. Ct . at 2300. 

## -3- Attorney Genera

l did not fil e the record of t he dis ciplinary hearing

even thou gh it was r

eadily available. The Attorney General must have decided that the r e cord woul d be superfluous in light of his argument that the petition failed to state a claim upon which relief could be grant ed beca use the “[p]etitioners in this case were not entitled to due process since the imposed sanctions of punitive segregation, involuntary administrative segregation, and a fine of $5.00 were not atypicalin relation to the ordinary incidents of prison life.” 5


## In its May 5, 2000 memorandum and order, the trial court, citing Sandin v. Co nner , determinedthat

Messrs. Willis and Tharpe had failed to state a claim meriting the sort of relief availab le through a common-law writ of certiorari beca use the punishments they received “are not atypical in relation to the ordinary incidents of prisonlife.” The court also concluded based on the “undisputedfacts of record” 6 

## that “the processprovided

to the pet

itioners t o conte stand defend against disciplina

ry sanct ions was c ommensur

ate with t he sanct ions imposed on th em and, th erefore, there was no violation or deprivation of due process.” Mr. Tha rpe has appealed. 7


## II.
The court has determined

that Mr. Tharpe’s petition failed to state a claim upon which relief canbe grant

ed solely because the punish

ment he r eceive d was n ot harsh

enough to amount to the impositio n of “atypical and significant hardship . . . in relation to the ordinary incidents of pr iso n life.” 8 

## The court’s reliance on Sandin v. Conner is flawed in two fundamentalways. First, Sandin v. Conner does not apply to certiorari proceedings in state court. Second, re lief under a common-law writ of cert iorari a ddresse s not just vio latio ns of cons ti tutional rights, but also arbitrary and capricious decisions.
A.
Th e Un ited State s Supreme Court did not intend to e stablish some sort of universa l rule governing all federal and state judicial pro ceeding s involving

the discip line of pr

isoners w hen it decided Sandin v. Conner . Rather, the Court was simply articulating a test for determining whether prisoners seeking relief under 42 U.S.C. § 1983 (1994) had alleged a violation of a liberty in terest9 Actions und er 42 U.S .C. § 198 3 m ay b e filed in state co urt. Wimley v. Rudolph , 931 S. W.2d 513, 515 (Tenn.

199 6); Poling v. Goi ns , 713 S.W .2d 3 05, 3 06 ( Ten n. 19 86)

. 

## -4- that would entitle them to relief. The holding of Sandin v. Conner is that a prisoner who files a 42 U.S.C. § 1983 suit

challenging a prison disciplinary proceeding based on a fa ilure to follow a state statute, rule, or

policy sta

tes a cla imfor relief only if the punishment theprisoner received imposes a significa nt hardsh ip that is a typical o f the nor

mal incide

nts of prison

life. Thu s, Sandin v. Conner is only directly applicable to actions in state and federal court under 42 U.S.C. § 1983. 9


## Petitions for

a common-law writ of certiorari serve diffe rent purposes and provide different relief thanactions under 42 U.S.C. § 1983. A common-law writ of certiorari permits the courts to examine a lower tribunal’s decision to determine whether the tribunal e xceeded its jurisdi ct ion or acted illegally. Robinson v. Clement , 65 S.W.3d at 635; Turne r v. Tenn essee Bd. of Paroles , 993 S.W.2d 78, 80 (Tenn . Ct. App. 1999). For the purpose of a common-law writ of certiorar i, illegal actions includ e decision s that are arbitrary and capricious. Cooper v. Williamson County Bd. of Educ. , 746 S.W.2d 176, 179 (Tenn. 1987); Davison v. Carr , 659 S.W.2 d 361, 363 (Tenn. 198 3); 421 Corp. v. Metropolitan Gov’t , 36 S.W.3d 469, 474 (Tenn. C t. App. 2000). What could be more arbitra ry and ca priciousthan a rule-make r refus ing to abid

e by its own

rules?
B.
A com mon-law writ of certiorari provides judicial relief in more circumstances than a n action under 42 U.S.C. § 1983. Section 19 83 provide s a fede ral cau se of action for th

e violation of right s secur edby the United States Constitution or federal law. Pendleton v. Mills , ___ S.W.3d at ___, 2001 WL 108950 3, at *5; Parks Properties v. Maury County , 70 S.W.3d 735, 743 (Tenn. Ct. App. 2001). On the other hand, a common-law writ of certiorari provides a judicial remedy whenever a lower tribunal exercising judicial functions has exceeded its jurisdi ctio n or has otherwise acted illegally. Tenn. Code Ann. § 27-8-101 (2000); Robinson v. Clement , 65 S.W.3d at 635; Turner v. Tennessee Bd. of

Paroles , 993 S.W.2d at 80. Thus, a common-law writ of certiorari may be used to grant relief in circumstances that do not warra nt relief under 42 U.S.C. § 1983. F ran klin v. Tennessee Dep’t of C

orr. , No. M2001-00279-COA-R3-CV, 2 001 WL 13 86089, at *4 (Tenn . Ct. App. Nov. 8, 2001 (No Tenn. R. App. P. 11 application filed).
One of the way s in which a lower tribunal acts illegally is when it follows an unlawful procedure. Watts v. Civil Serv. Bd. , 606 S.W.2d 274, 277 (Tenn. 198 0); Nevills v . South Cen t. Corr. DisciplinaryBd. , No. M2000-02 324-COA- R3-CV, 200 1 WL 11170 66, at *3 (Tenn. Ct. App. Sept. 25, 2001) (No Tenn. R. App. P. 11 a pplication filed); Lafferty

v. City of Winchester , 46 S.W.3d 752, 758-59 (Tenn. Ct. App. 2000). The Tenn essee Supreme Court has specifically approved using a c ommon-law writ of certiorari to remedy (1) fundamenta lly illegal rulings, (2) proceed ing s incons isten twith essential legal requirements, (3) proceedings that ef fectively deny a party his or her day in cou

rt, (4) dec isions bey ond the low er tribun al’s authority, and (5) pla in and pal

pable abuses of discretion. State v. Willoughby , 594 S.W.2d 388, 392 (Tenn. 1980). A cco rdingly, a10 State v. Wom ack , 591 S.W .2d 437, 442 (Tenn. Ct. App . 1979).
11 Hoover v. M etrop olitan Bd . of Zo ning Ap pea ls , 924 S.W.2d 900, 905 (Ten n. Ct . App. 199 6); Brooks v. Fisher , 705 S.W .2d 1 35, 1 36 ( Ten n. Ct. A pp. 1 985 ); Harles s v. Cit y of Kingsp ort , No. 03A01-9707-CH-00289, 1998 WL 13151 9, at *5 (Tenn. Ct. App . Mar. 25, 1998 ) (No Ten n. R. App. P. 11 ap plication fil ed).

12 See Fox v. Te nnesse e Bd. of Paroles , No. 01A01-9506- CH-00263, 1995 WL 681135, at *3 ( Tenn. Ct . App. Nov. 17, 1995) (No Tenn. R. App. P. 11 applicat ion fil ed) (holdi ng that an al legati on of fail ure to provide a righ t o r ben efit to which the clai mant is ent itl ed under stat e law or regula tion st ates a clai m for reli ef

through a commo n-law writ o f certio rari).

13 The court conditioned this conclusion by ob serving that “[w]e do not imply that a st atut ory viol ati on cannot con stitute a failure to conform to the e ssentia l requ irem ents of the law.” W hile this sta tem ent is u ndo ubte dly c orre ct, it does not i mply that

the gove rnment’s obli gati on to f oll ow its own procedure s depends on whether these procedures are mandat ed by st atut e, rule, regul ati on, or poli cy. 

## -5- common-law writ of certiorari can be used to address the denial of procedural rights secured by the federa l and state

constituti ons, 10 

## state statute, 11 

## or state, federa l, or loca l regula tions. 12


## This court ha s been mor

e diffide nt about whether v

iolations o f the Dep artment’ s Unifo rm Disciplinary Proce dures w arrant relief under a common-law w rit of certiorari. Initially, we conclu ded that departures from these procedure s could be “so extreme as would compel the trial court to issue a writ of certiorari.” Wilson v. South Cent . Corr. Facili ty Disciplinary Bd. , No. M2000-00303-COA-RM-CV, 2000 WL 14 25228, at *5 (Tenn . Ct. App. Sept. 28, 2000) (No Tenn. R. App. P. 11 a

pplication filed). More recently, w e held tha t a failur e to adhereto the requireme nts of the Uniform Disciplinary Procedures wo u ld not amount to a failure to “follow the essential require ments of the law” unless the p unishment imposed an atypical and significant hardship beyond the ordin ary inci dents of prison life. Ahkeen v. Campbe ll , No. M2000-02411-COA-R3-CV, 2001 WL 1346250, at *7 (Tenn. Ct. App. Nov. 2, 2001) (No Tenn. R. App. P. 11 application filed). 13


## The Department’s Uniform DisciplinaryProcedures have not and need not be promulgated as rules using the rule-making procedures in the Uniform Administrative Procedures Act. Mandela v. Campbell , 978 S.W.2d 531, 534 (Tenn. 1998). Ho wever, the polic ies exist “[t]o provide for the fair and impartial determination and resolution of all disciplinary charges placed against inmates.” T DOC Policy No. 502.01(I I). The p olicy is the

sole sour

ce of the Departm ent’s disciplinar y procedu res. While it “is not intendedto crea te any additional due process guarantees for inmates beyondthose which are con stitutiona lly requir ed,” deviations f

rom the po licy will

warrant dismissal of the discip linary of

fense if the priso ner demonstrates“some pr ejudice as a res u lt and th e error would have affected the disposition of the case.” TD OC Policy No. 502.01(V). Accordingly, I would hold that a prisoner seeking judicial review of a prison disciplinary proceeding states a claim mer iting relief under a common-law writ of certiorar i if the prisoner’s complaint allegesfacts demonstrating that the failure to follow the Uniform Disciplinary Procedures affected the disposition of thedisciplina ry proceeding tothe priso ner’s pr ejudice . Stated in

terms more traditionally associated with a common-law writ of certiorari, a pr isoner states a c lai m warranting the issuance of a writ of certior ari to re view the r ecord of a disciplinary pro ceeding if his14 We hav e alrea dy q uestio ne d the wi sdom of the tac ti c of f il ing a moti on to di smiss or summary j udgment without fili ng the com plete record in case s of this so rt. Livin gston v. State , No

. M19 99

- 01 13 8- CO A- R3

- CV , 20 01 WL 747643, at *5 (Ten n. Ct. A pp. Ju ly 5, 2 001 ) (No Ten n. R. A pp. P . 11 a pplic ation filed) (sta tin g tha t the co urt is “tr oubled” by the tactic of s eeking a sum mary jud gme nt supported only b y carefully selected portions of the record). I have lit

tle doubt that had t

he Department fil ed the complete re co rd o f the d iscip li nary hear ing i n thi s cas e, t

he information in the record w ould have p rovided a sufficient factual basis for declining to grant Mr. Tharp e relief.

15 Prisoners are en titled to n otice o f their d iscipli nar y infract ion by receivi ng writte n notice of t he charges (usu all y in the f

orm of a copy of

the di sci pli nary re port) at l east twent y-four

hours be fore t

he heari ng before the discip linary boa rd. T DO C Po licy N o. 50 2.01 (VI )(A )(3)(c ), -(V I)(D )(3)(b ).

16 Th is all eg ati on can reasonably be i nterpret ed to mean either that Messrs . Tharpe and Willi s recei ved no notice of the charges against

them or that t

he notice they receiv ed w as som eho w d efectiv e. Th e form er circu ms tance wo uld be paten tly pre judic ial, wh ile the p rejud icia l nature of the la tter

circumstance would depend on the particul ar shortcoming of the c hallenged noti ce. 

## -6- or her petit ion con tains factual allegations demonstrating that the prisoner was prejudiced ( 1) by being effectively de

nied a he aring, ( 2) by plain and palpable abuse of the hearing officer’s, the chairpe rson’s, or the disciplinary board’ s discre tion, or (3) by hearing officers, chairpersons, or boards following an unlawful procedure.
C.
It is not our prerogative at

this stage of the proceedings to analyze the substantive merits of Mr. Tharpe’s claims because the Depa rtment elected

to file a Tenn. R. Civ. P. 12.02(6) motion rather than the record of

the disciplinary hearing. 14 

## Our only ta sk is to review Mr. Tharpe’s petition, taking its factual allegations as true, to determine whether it states a claim or claims upon which the relief available through a common-law writ of certiorar i can be granted.
Mr. Thar pe’s petition contains factual allegations depicting three departures f rom the Department’s Uniform D isciplina ry Rules. F

irst, it alleges tha

t Messrs. Tharpe

and Willisdid not receiveadequate notice of the disciplinary charges. Sec ond, it asserts that Messrs. Tharpe

and Willis wereprevented from obtaining and presentingrelevant evidence. Finally, it alleges that the disciplinary board did not independe ntly ass ess and verify the reliability of the confidential informant’s evidence. If

substantiated, these deviations from theUniform D isciplina ry Procedures, considered

individually or collectively, could have affected the outco me of the disciplinary proceeding to the prisoners’ prejudice.
The petition st

ates tha t Messrs. T

harpe a nd Willis “were not placed on notice pr ior to thei r hearings of the specific charges against which they would ha ve to def end .” If substantiated, the failure to provide notice would be a violation of the notice req uiremen ts in the Uniform Disciplinary Procedures 15 

## which couldvery ea sily have prejudic ed the pr

isoners’ ability

to defend themselves. 16 

## In the absence of a record, we must take the allegations in the petition as true and must construe the17 Mr. Th arpe states in h is pro se brief that he “was issued discipli nary infr acti on report no. TC107423/378998 for the allege d of fense of ‘A ttem pted Esca pe,’” and attach ed a c opy of this report to his brief. This docum ent is not part of the appell ate rec ord because it was not int

roduced in the t

rial court. We cannot take judici al notice o f m aterials appended to br ief

s t hat a re not

properl y part

of t he reco rd o n ap pea l. Vanderbil t Univ . v. Henderson , No. M1998-00929- COA- R3- CV, 2001 WL 1216980, at*5, n. 4 (Tenn. Ct. App. Oct . 12, 2001) (No Tenn . R. App. P. 11 application filed); State v. Cooper , 736 S.W .2d 1 25, 1 31 ( Ten n. Cr im. A pp. 1 987 ).

18 Prisoners do not hav e an u nqu alified rig ht to ca ll witn esses in discip linary pro ceed ings. Wo lff v. Mc Do nne ll , 418 U.S . 5 39, 566 -6 7, 94 S . C t. 296 3, 298 0 ( 197 4)

. Acc or di ngl y, TDOC Policy No. 502.01(VI)(E)( 2 (c) (6) p erm its prisoners “to prese nt tes timony of relevant witness es unless all owing a wit ness to appe ar would pos e a t hreat to t he inst itutional safety or o rder.” Prison ers m ust co mp lete witne ss r equest forms i n a ti mely manner, TDOC Policy No. 502.01(VI( E)(2)( d)(1) , but the c hairperson of the discipli nary board may also use his or her dis creti on to all ow other prisoners or staf

f memb ers t o testify even i n the absence of a timely r equest. TDO C Policy No. 502 .01(VI)(E)(2)(d)(2).
19 They assertthat

thi s i nformantwas another pri soner who “concoct ed” t he esc ape st ory to induce the pr ison of fi ci al s t o d ro p d ru g p os s es s i on ch ar ge s t ha t we re pe nd i ng ag ai ns t hi m. 

## -7- petition as alleg ing that the prisoners received no not ice of the charg es prior t o the hearing. 17 

## If substantiated, a failure to give notice of the charges would have been a clear violation of the Uniform Disciplin ary Rulesthat would have pre judiced t he prisoners. The petition also alleges that the disciplinary board prevented Messrs. Tha rpe and Wi llis from obtaining and introducing relevant “exculpatory” evidenc e. If substantiated , thi s conduct would likewise be contrar

y to the prisoners’ qualified right to introduce evidence and c all witnesses in disciplina

ry proceedings. 18 

## In the absence of a record, w e must presu me that Me ssrs. Tharpe and Willis made timely requests for the witnesses and documents and that permittingthem to ca ll their witnesses would nothave jeopardized safety or order in the institution. The evidence they desired to present involvedthe chain of custo dy of the p liers fou nd in their cell. Thi s evidenc e was ce rtainly relevant and could have affected the outcome of the proceeding. Accordingly, at lea st on its face, w e must presume that refusing to permit Messrs. Tharpe and Willis to present this evidence wa s prejudicial. Finally, Messrs. Tharpe and Willisassert th at the disciplinary b oard did not indepe

ndently assess the credibility of a confidential inf orma nt whose te stimony ap

parentl y formed part of th e basis for finding them guilty of attempted escape. 19 

## This allegation, if substantiated, would be a serious departurefrom the Uniform Disciplinary Procedures which require the cha irperson to indepe

ndently “assessand verify the reliability of the informant’s testimony” and, when the information provide s a basis for

the boar d’s deci sion, “to d

ocument t

he fact ual basis for the disciplinary hearing officer’s/chairperson’s finding th at the inf ormant’sinformat

i on w as reliable.” TDOC Policy No. 502.01(VI)(E)(2)(e). Compliance with this procedure fosters the reli ability of prison disciplinary proceedings because prisoners can be denied the oppor tun ity to confron

t and cro ss-exam

ine their accusers when prison officials are concerned about re prisals or

other security c oncerns . Williams v. Fountain , 77 F.3d 372, 374-75 (11th Cir. 1996). In the absence of a record, we must presume that the allegations in the petition are true. Fa iling to independently verify the credibility of the confidential informant could easily haveprejudic ed both Mr . Tharpe and Mr. W

illis beca use it could

## -8-

have caused them to be convicted of a serious disci plinary offens e based on false o r unrelia ble evidence.
III.
The imposition of punishment without a reliable determination of guilt is senseless, even when the proceeding involves a prisoner in a state correctional inst

itution. Me asuring t

he fair ness of a prison disciplinary proceeding only by its outcome effectively puts the cart before the

horse and gives the Department

carte blanche

to ignore its own rul es as long

as the pun

ishment me

ted out is nottoo harsh. Undermining the truth-finding function of a prison disciplinary hearing by ignoring the very policies designed to assure that the proceedings will be “ fair and impar tial” is precisely the sort of arbitrary and capricious conduct that can be corrected using a

common-la

w writ of c ertiora

ri. Accordingly, I would find that the petition Mr. Tharpe filed in this case states a clai m for which relief can be granted, and I would remand the c ase to the trial court with directions to issue the writ of certior ari, direct the De

partmen t to file the record, and then address the substance of Mr. Tharpe ’s claims in light of the

record of the pr oceedings.

_____________________________

WILLIAM C. KOCH, JR., JUDGE