### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs D ecember 9, 1998 WILLIE PERRY v. DONAL CAMPBELL, ET AL 

### . Appeal from the Chancery Court for Davidson County No. 97-3328-III Ellen Hobbs Lyle, Chancellor

No. M1998-00943-COA-R3-CV - Filed January 22, 2001

This appeal involves a

prisoner’s chal

lenge to a prison di

sciplinary board ’s decision to plac e him in involuntary administrative segregation. After exhausting his remedies within the Department of Correction, the prisoner filed petitions for a common- la w and a statutory writ of certiorari in the Chancery Court for Davidson Count y complaining that h

e had been denie

d the right to call witnesses, that the board’s decision was racially motivated, and that the board’ s decision lacked evidentiary

support. The trial court granted the State’s motion for summary judgment and dismissed the prisoner’s pe

titions. We affir

m the trial court’ s judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

W ILLIAM C. K OCH , J R ., J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILLIAM B. C AIN , J., joined. Willie Perry, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore , Solicitor Genera l; and Elena J. Xoinis, Assistant At

torney General

, for the appelle

es, Donal Campbell ; West Tennessee High Securi ty Facili ty Disciplinary Boa rd; Warden Rober

t Conley; Sgt. Lloyd Moo re; Janice Sande

rs; Greg Helton; and Dennis Talley.

OPINION
Willie Perry is incarcera

t ed at the West Tennessee High Security Facility in Henning. He
was originally convicted of second degree murder in 1981 in Shelby County and was sent enced to ten years . He wa s eventually paroled but was later returned to prison after he was convicted of aggravated

assault, receiving and

conce aling stolen property, and seven counts of armed robbery. In the summer of 1997, Mr. Perry was caught using visitors to smuggle marijuana into the prison. He pled guilty to the disc iplinary charge

of drug possession

. In addition, the pr

is on disc iplinary board also found Mr. Perry guilty of co nspir acy to violate state law. As a result, Mr. Perry was placed in involunta

ry administrative

segregation for

thirty days.-2-

Mr. Perry unsuccess

fully appealed th

e involuntary admi

ni strative segregation to both the warden and the Commissione r of the Department of Correction. On October 8, 1997, he filed a petition in the Chancery Court for Dav i dson County, seeking both the common-law and statutory writs of certiorari as a means of having the pri son disciplin ary board’s action reviewed. The AttorneyGeneral and Reporter promptly moved for summary judgment. On June 17, 1998, the trial court granted the summary judgment. The court held that the decisions of prison disciplinaryboards
are no t review able by the statuto ry writ of certio

rari and that Mr.

Perry had failed

to allege facts entitling him to revie w by a common-law writ of certiorari. The trial court also found that the disciplinary board’s decision had evidentiary support and that Mr. Perry had failed to demonstr

ate that he had a triable issue of fact with regard to his other c laims. Mr. Perry has appealed the dismissal of his petit

ions.

I.

S TANDARD OF R EVIEW
Tenn. R. Civ. P. 56.04 provides that summary judgment is appropriate where (1) there is no genui ne issu e with regard to the material facts relevant to the claim or defense contained in the motion, Byrd v. Hall

, 847 S.W.2d 208, 210

(Tenn. 1993), an

d (2) the moving par

ty is entitled to

a judgmentas a matter of law based on the undisputed facts. Anderson v. Standard Register Co. , 857 S.W.2d 555, 559 (Tenn. 1993). The moving party has the burden of demonstrating that its motion satisfies these requirements. Staples v. CBL & Assocs. , 15 S.W.3d 83, 88 (Te nn. 2000); Downen v. Allstate Ins. Co. , 811 S.W.2d 523, 524 (Tenn. 1991). When the party seeking summary judgment makes a properly suppor

ted motion, the burd

en shifts to the nonm

oving party to set f

orth specific facts establishing the e

xistence of disput

ed, material fac

ts that must

be resolved by the trier

of fact. Staples v. CBL & Assoc. , 15 S.W.3d at 88; Byrd v. Hall

, 847 S.W.2d at 215. O

nce that burden s

hifts, the nonmoving party must then by affidavits or discovery materials

demonstrate that a genuine, material fact dispute exists. Tenn. R. Civ. P. 56.06. To meet that burden, the nonmoving party may notmerely rely upon his or her pleadings. Staples v. CBL & Assoc. , 15 S.W.3d at 88; Pate v. Service Merch. Co. , 959 S.W.2d 569, 573 (Tenn. Ct. App. 1996).

II. R EVIEW OF D ISCIPLINARY D ECISIONS BY A S TATUTORY W RIT OF C ERTIORARI
We turn first

to the trial court’s determination that the decisions of prison disciplinary boards
are not reviewable under the statutory certiorari writ. While that issue has not always been free of dou bt, we have recen

tly resolved it in an

other of Mr. Perr

y’s appeals. The

statutory writ o f certiorari, codified at Tenn. Code Ann. § 27-8-102 (2000), is only available to review administrative decisions when a statute designates it as the means for reviewing an action of an administrative body. Cooper v. Williamson County Bd. of Educ. , 746 S.W.2d 176, 178 -79 (Tenn. 1987) . No sta tut e expressly provides for

judicial review of prison

disciplinary boar

d decisions by cer

tiorari. The only question has been

whether prison

disciplinary boar

ds could be conside

red under the sta

tutory writ
as “judicial” bodies. See Williams v. Department of Co rr. , No. 02A01-9503-CV-00046, 1995 WL 575142, at *2-3 (Tenn. Ct. A pp. Oct. 2, 1995) (No Tenn. R. App. P. 11 application filed ). We have-3-

now answered that

question. Proceedings before prison disciplinary boards “are administra tive in nature and are not judicial proceedings, thus not subject to the relief afforded by a statutory writ of certiorari.” Perry v. Cold Creek Corr. Facilit

y Disciplinary

Bd. , No. M1999-01898-COA-R3-CV, 2000 WL 1137710, at *3 (Tenn. Ct. App. Aug. 9, 2000) (No Tenn. R. App. P. 11 application filed). Depar tmentof Correction regulations make clear that administrative segregation is a “contro l mechanism,” not a disciplinary sanction. Becaus

e the board’s action was administrative, we find that the trial court correctly determined as a matter of law that Mr. Perry was not entitled to judicial review using the s

tatutory writ of c

ertiorari.

III. R EVIEW OF D ISCIPLINARY B OARD D ECISIONS BY C OMMON -L AW W RIT OF C ERTIORARI Turning to Mr. Perry’s petition for a common-law writ of cer tior ari, we start with the proposition that any revie w under t hat writ is only available to determine whether a board has exceeded its jurisdiction or has acted illegally, arbitrarily, or fraudulent ly. McCallen v. City of Memphis , 786 S.W.2d 633, 638 (Tenn. 1990). As we have repeated ly said, “it is not the

correctness of the decision that is subject to judicial review, but the manner in which the decision is reached.” Powell v. Parole Eligibility Review Bd. , 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994).

Mr. Perry’s petition alleged three specific ways by which the board supposedly reac

hed its decisionarbitrarily and illegally. First, he alleged that he was denied the ability to present w itnesses. Second, he alleged that

the bo ard’s decision was racially motivated. Lastly, he alleged that the decisionwas not supported by evidence. The first and third matters involve questions of law; the second matter impl

icates a question

of fact.

A. Mr. Perry contends that he desired to present witnesses at his disciplinary hearing and that t he board wrongly rebuffed his request. He characterizes the board’s ac tion as a deni al of du e process. What degree of due process Mr. Perry was entitled to at his disciplinary hearing depends
on the nature of the sanctions involved. Sandin v. Conner , 515 U.S. 472, 485-86, 115 S. Ct. 2293, 2301 (1995). The United States Supreme Court has said that a prisoner i s entitled to limited due process only when the resulting sanctions impose “atypical and sig

nificant hardshi

p on the inmate inrelation to the ordinary incidents of prison life.” Sandin v. Conner , 515 U.S. at 483-85, 115 S. Ct. at 2300-01; see also Ishaaq v. Compton , 900 F. Supp. 935, 938-40 (W.D. Tenn. 1995). Segregat ed

confinement does not present the type of atypical significant deprivation tha t triggers full due process rights. Sandin v. Conner , 515 U.S. at 483-85, 115 S. Ct. at 2300-01; Ishaaq
v. Compton , 900 F. Supp. a t 939. P risoners do not hav e an absolute righ

t to call witnesses o

r to confront adverse witnesses. Wolff v. McDowe ll , 418 U.S. 539, 566-70, 94 S. Ct. 2963, 2979-81 (1974). The United States Supreme Court has explained:-4- The operation of a correctional institution is at best an extrao

rdinarily difficult undertaking. Many prison officials, on the spot and with the responsibility

for the safety of inma

tes and staff, ar

e reluctant to extend the unqualified r

ight to call w

itn esses; and in our view, they must have the necessary discretion without being subject to unduly crippling constitut

ional impediments. Wolff v. McDonne

ll , 418 U.S. at 566-67, 94 S. Ct. at 2980.
Whatever right Mr. Perry may have had to call witnesses at his disciplinary hearing comes notfrom the federal constitution but from the rules and regulations of the Department of Correction. Those rules pe rmit pri soners “to present the testimony of relevant witness[es] unless allowing a witness to appear would pose a threat to institutional safety or order.” Depart ment of Co rrection Reg. 9502.1(VI)(D)(3)(c)(6) (1995). A prisoner who desires other prisoner s or staff present to testify “should complete” the designated request form and submit it to prison officials at least twenty-four hours prior to the hearing. Department of Correction Reg. 9502.1(VI)(D)(3)(d)(1). Even if the prisoner does not complete t

he form, the boar

d chairman still ha

s disc ret ion to allow prisoners or staff to testify if that testimony would be helpful to any decision. Department of Correction Reg. 9502.1(VI)(D)(3)(d)(2).

The record shows that Mr. Perry did not comply with department policy because hefailed to make a pre-hearing request for witnesses to testify on his behalf. At th

at point, the allowance of any witnesses rested within the board chairman’s discretion. According to Mr. Perry, he was under pressure from gang members within the prison population to be a conduit for drugs brought into the prison. The witnesses Mr. Perry wanted to pr

esent were staf

f members who alle

gedly could corroborate

his testimony that there were gang threats inside the prison. From all weca n tell, the board did not discount Mr. Perry’s account of gang pressure, thus the testimony he sought to present would have been cumulative to his own. It is fully within a factfinder ’s legitimate prerogative to both deny a contin

uance a nd decline to entertain merely cumulative testimony. Russell v. Crutchfield

, 988 S.W.2d 168, 170 (Tenn. Ct. App. 1998); Wade v. State , 914 S.W.2d 97, 102 (Tenn. Crim. App. 1995).

B.

Mr. Per ry also claims that the board acted

arbitrarily in ma

king its finding aga

inst t h e prepo nderance of the evidence . With respect to s ufficiency of th

e evidence in the

context o f procedural due process, “the requirements of due process are satisfied if some evidence supports the decisionby the prison disciplinary board . . .” Superintendent, Massachusetts Corr. Inst. v. Hill , 472 U.S. 445, 455, 105 S. Ct. 2768, 2774 (1985). The disciplinary board had before it the testimony of both the reporting officer and Mr. Perry. That evidence supported the decisionof the disciplinary board.1 To constit ute an affi

davit, t he state ments in a wri

ting must be made by the affiant u nder oa th. State Dep’t of Human Servs. v. Ne ilson , 771 S.W.2d 128, 13 0 (Tenn. Ct. App. 1989).
-5- C. Lastly, Mr. Perry contends that he is African-American, and that the members of the board based their de ci sion on their alleged prejudice against African-Americans. If true, Mr. Perry’s contentions undoubtedly could make the board’s decision unlawful. See generally Ha rris v. Ostr out , 65 F.3d 912, 916 (11th Cir. 1995) (stating that under the Equal Protection Clause, prisoners have a rightto be free from raci al discri mination). On this point, however, Mr. Perry failed to create a triable issue.

The State supported its

motion for summary j udgment with the affidavits of the disciplinary board members. Each member denied that race played any part in the board’s consideration of Mr. Perry’s case. At that point, the burden shifted back to Mr. Perry to go beyond the mere allegations of his complaint, and it was incumbent on him to come forward with evidentiary materials satisfying Tenn. R. Civ. P. 56.06 that would, if credited, crea

te a factual disp

ute. Mr. Perry, ho

wever, came forward with nothing more tha

n a repetition of th

e statements in his

unsworn complaint

. Although he filed a paper styled as his “affidavit,” that documen t is unattested to, and thus does not qualify
as anaffid avit. 1 No other person c onnected with Mr.

Perry’s hearing

corroborated u

nder oath his
unswornclaim that the boar d’s acts were motiva ted by racial ani mus. Mr. Perry’s a

llegations,
unswornand uncorroborated by evidentiary materials, are not enough to create a

triable issue of fact
on this point. Cf. Bonds v. Cox , 20 F.3d 697, 702 (6th Cir. 1994); Keith v. Witt , 919 S.W.2d 613, 614-15 (Tenn. Ct. App. 1995).

IV. We affirm the summary judgment dismissing Mr. Perry’s petitions a nd remand the ca

se to the trial court

for whatever further proceedings may be required. We tax the costs of this appeal to Willie Perry for which execution, if necessary, may issue.

___________________________________ WILLIAM C. KOCH, JR., JUDGE