### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 12, 2000 Ses sion
MARIO HAYWOOD v. TENNESSEE DE PARTMENT OF CORRECTIONS , ET AL 

### . An Appeal from the Chancery Court for Davidson County No. 99-1129-II Carol L. McCoy, Chancellor

No. M1999-02282-COA-R3-CV - Filed April 23, 2001

The plaintiff

prison inmate filed pro se petition for declaratory judgment and/or a writ of certiora ri seeking review of prison

disciplinary

board’s finding

of guilt and the punishment relating to a prison incident. The trial court di smi ssed the petition for lack of jurisdiction, finding that declaratory judgment was not avai lable for a re view of pris on discipl inary proceedin gs and that the petition for
a writ of certiorari was untimely filed. The trial court also denied the plaintiff’s subsequent petition to rehear. The pla

intif f appeals from

the dismissal of his o

riginal petition a

nd the denial of his petition to rehea

r. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed.

H OLLY K IRBY L ILLARD , J., delivered the opinion of the court, in whichW. F RANK C RAWFORD , P.J., W.S. and A LAN E. H IGHERS , J. joined. Mario Haywood, pro se.
Paul G. Summers, Attorney General and Reporter; and Abigail Turner , AssistantAttorney Ge

neral, Nashville, Tenne

ssee, for the app

ellee, Tennesse

e Department of C

orrections.

TomAnderson, Jackson, Tennessee, for the appellees, Alan Bargery , David Harvil le, and Glenn Turner.
OPINION On October 8, 1998, Petitioner/Appellant Mario Haywood (“Haywood”), an inmate of the Respondent/Appellee Tennessee Department of Corr ections (“TDOC”) and incarcerated at the HardemanCounty Correctional Facility (“HCCF”) , appeared before the HCCF Disciplinary

Board, charged with participating in a gang-related assault at the facility. H

CCFis a penal facility owned
an operated

by Corrections Corporations of America (“CCA”), a private corpor ation, under contract withthe TDOC to operate the facility. After hearin g the evidence, the HCCF Disciplinary Board-2-

(“the disciplinary board”) found Hay wood guilty of participating in the assault and recommended twenty days of punitive segregation, a loss of nine months in Prisoner Sentence Reduction Credits, and placement on Involuntary Administrative Segreg ation. Haywood appealed the disciplinary board’s finding. His disciplinary conviction and the recommended segreg ation and loss of sentence reductions credits weresubsequently upheld by the TDOC Assistant Commissioner on October 30, 1998, and by the TDOC Commissioner o f Corrections on November 25, 1998. On January 18, 1999, Hayw ood filed a petition with TDOC pursuant to section 4-5-223 of the Uniform Administrative Procedures Act (“UAPA”), Tennessee Code Annotated § 4-5-101 et. seq., seeking
a declaratory

order concern

ing his disciplinary conviction. TDOC denied this petition on March 3, 1999.

On April 19, 1999, Haywood filed with the Chancery Court of Davidson Cou nty a pro s e Petition for a Declara

tory Judgmen

t and/or Writ of Cert

iorari challeng

ing his disciplinary conviction and seeking, inter alia , an order vacating the conviction and restor ing him from Involuntary Administrative Segreg ation to hi s prev ious s ecuri ty stat us. In his petition, Haywood contended that he was wrongfully

convicted beca

use there was no r

eliable evidence establishing that he participated in the assault. He a

lleged that the d

isciplinary

board and other p

rison offic

ials denied him due processand violat ed TDOC pol icies, sta te laws, and his righ ts under t he state and federal const itutions by suppress ing material ev

idence at the disc

iplinary he

aring, failing

to submit a properly completed written summary of the evidence relied upon

at the hearing,

and depriving hi

m of sentence reduction credits without evidence of wrongdoing. TDOC filed a motion to dismiss the petition for lack of jurisdiction under Rule 12 of the TennesseeRules of Civil Procedure, asserting that the petition had not been timely filed and that declaratory judgment is not available with respect to prison disciplinar

y actions. Re

spondent/Appelle

e employee

s of CCA, Alan Bar

gery, Da vid Harville, and Gle

nn Turner, also

filed a motion to dismiss pursuant to Rule 12, for failure to sta te a claim upon which relief could be granted.

The trial court found that

declaratory judgment was not available because Haywood was not challengingthe legal val idity of the di sciplinar y rules, but th e discipli nary proceedings and the punishmentimposed

. The trial court de termined that Hay

wood’s action wa

s more properly construedas one for certiorari review, yet dismissed

the petition for lack of jurisdiction, finding that it was time- barred because it was filed more th an sixty day

s after the final

entry of jud

gment. Haywood subsequently filed a petition to rehear, which was denied. Haywood now appeals.

On appeal, Hay

wood argues tha

t the trial court e

rred in dismissing

his petition. He contends that he i s ent itled to declarat ory judgme

nt under the UAPA because the disciplinary board acted illegally and arbitrarily in reaching the decision to convict him. Haywood also asserts that the trial court had jurisdiction to review his petition for writ of certiorari because hefiled the petition w ithin sixty days after his petition for declaratory order was denied by TDOC.

A motion to dismiss for f ailu re to state a claim tests the legal sufficiency of the plaintiff’s claim. Riggs v. Burson , 941 S.W.2d 44, 47 (Tenn. 1997). The grant of a motion to dismiss may be affirmed only if the a

llegations in the

plaintiff’s compl

aint, even if take

n as true, fail to st

ate a claim-3-

upon which the plaintiff would be entitled to relief. Stein v. Davidson Hotel Co. , 945 S.W.2d 714, 716 (Tenn. 1 997). Therefore, in reviewing a trial court’s grant of a motion to dismiss, all factual allegations are taken as tru e, and the trial court’s co nclusions of law are reviewed de novo on the record with no presumption of correctness. Doe v. Sundquist , 2 S.W.3d 919, 922 (Tenn. 1999).

A prisoner disciplinary proceeding is by definition not a contested case subject to direct review under the UAPA. T enn. Code An n. § 4-5-10 6(b). The pr oper method for challen ging a disciplinary

action is a

petition for a common law writ of certiorari, which must be filed within sixty days from the entry of the disputed order or judgme

nt. See Rhoden v. State

Dep’t of Correction , 984 S.W.2d 955, 956 (Tenn. Ct. App. 1998), perm. to appeal denied Jan. 25, 1999; Tenn. Code Ann. 27-9-102. This six ty-day time period includes the final affirmation by the Commissioner of Corrections. A’La v. Tennessee Dep’t of Corre

ctions , 91 4 S.W.2d 914 (Tenn. Ct. App. 1995), perm. to appeal denied Jan. 8, 1996. Failur e to file within the s

ixty-day perio d res ults in a disciplinary

board’s decision becoming final, and deprives a reviewing cour t of jur isdiction to entertain the merits of the case under a wr it of certiorari. Fairhaven Corp. v. Te nnessee Health Facilities Comm’n , 566 S.W.2d 885, 887 (Tenn. Ct. App. 1976), cert. denied Aug. 16, 1976. Haywood categorizes his petit ion for decl aratory judgmen t as a challe nge of the “illegal” and “arb itr ary” actions of the dis ciplinary board and other prison officials in finding him guilty. The basis of his petition is

that he should

not have been found guilty because there was no e vidence that he participated in

the assault. He essential ly challenges th e outcome of the discip linary proceedi ng, his conviction and pun

ishment. Such a rev

iew is statutorily excluded from the UAPA’s definition of a contested case

and declarator

y ju dgment

is not available. See Rhoden , 984 S.W.2d at 956; Tenn. Code Ann. § 4-5-106(b). Haywood agues t hat his petition for writ of certiorari was timely filed because it was filed within sixty day s of TDOC’s denial

of his petition for a

declaratory

order. However

, as set forth above, prisoner disciplinary proceedings cannot be reviewe d directly under the Uniform Administrative Act. See Rhoden , 984 S.W.2d at 956. Therefore, Haywood’s final administrative appeal was exhausted when the Commissioner of Corrections affirmed the conviction on November 25, 1998. Since Haywood did not file his petition until April 19, 1999, nearly five months after the Commissioner affirmed the conviction, it was time-barred and the tri al c our t pr ope rly dismissed the petition for lack of jurisdiction.

The decision of the tr

ial court is affir

med. Costs are taxed

to the appellant, Mario Haywood, and his sur ety, for whi ch ex ecut ion may i ssu e if nece ssa ry.

___________________________________ HOLLY K. LI

LLARD, JUDGE