### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs O ctober 12, 1999
WILLIAM H. HORTON v. T ENNESSEE DEPT. OF CORRECTION, ET AL 

### .

Appeal from the Chancery Court for Davidson County No. 98-612-II Carol L. McCoy, Chancellor

No. M1999-02798-COA-R3-CV - Filed Septem ber 26, 2002

This appeal involves a dispute b etween a prisoner and the Tennessee Department of Correction regarding two minor Cl ass C disci

plinary infrac tions. Aft

er his inte rnal appeals wer e denied, the prisoner filed a p etition fo r common-law writ of certiorari in the Chancery Court for Davidson County challenging three proc edural aspects of the disciplinary hear ings. The Department filed a Tenn. R. Civ. P. 12.02(6) motion to dis miss the pe tition. I nstead of directing the De

partmen t to file the official records of the two proceeding s, the trial court dismissed t he prisoner’s complaint regarding one proc eeding and directed the Depa rtment to submit additional information regarding the other proceeding. After the Department submitted additional information, the trial court, now treating the Depa

rtment’ s motion as a motion for summary judgme nt, dismissed the remainder of the prisoner ’s compla

int. The prisoner has perfected this appeal. We have determine tha t the trial court properly dismissed the prisoner ’s challenges to the disciplinary proce

eding regarding

the being outof p la ce infr

action. H owever , we have determined that the prisone r has sta ted a cla im with regard to the Dep artme nt ’s compliance with Tenn. Dep’t Corr. Policy No. 9502.01(VI)(D)( 2) regarding the disrespect infraction. Therefore, we reverse the dismissal of this portion of the prisoner ’s petitio n and remand the c ase for further procee dings. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part and Vacated in Part

W IL LI AM C. K OCH , J R ., J., delivered the opinion of the court, in whichW IL LI AM B. C AIN , J., joined. P ATRIC IA J. C OTT RELL , J., filed a concurring opinion.
William H. Horton, Nashville, Tennessee, Pro Se.

Paul G. Summers , Attorne y General and Repor

ter; Mich ael Moor

e, Solicito

r Gener al; and Pamel a S. Lorch, Assistant Attorney General, for the appellee, Tenne ssee Department of Correction.

Tom Ander son, Jackso n, Tenne ssee, fo r the app ellee, D octor R. Cr ants.
OPINION

I.

In November 1992, a Davidson County jur y convicted William H. Horton of possessing cocaine with the intent to resell. The trial court subseque ntly sentenc ed him to tw enty -one y ears in1 Mr. Ho rton’s co nviction was sub sequ ently affi rme d on app eal. See Stat e v. Horton , No. 01C01- 9312- CR00435 , 1994 W L 5487 50 (Tenn. Crim. Ap p. Oct. 6, 1994) perm. app. denied (Tenn. Jan. 30, 1995 ).

2 Under De partm ent of C orre ction a dmin istrative p olicies a nd p roce dure s, priso n rule infra ctions fa ll int o three classes: A, B, or C. C lass C o ffenses ar e the lea st seriou s offense s. See Tenn. Dep’ t of Corr. Polic y In dex 502. 05 (VI)(A) (2000 ).

3 In his appel lat e bri ef, Mr. Horton claims that the second hearing resul ted in him receivi ng a writt en warning; however, he pr ovid es no citation to the rec ord to sup por t that asser tion. See Tenn. R. App. P. 27(g). The disciplinary report hearing summary in t he record indicates that he only received a verbal warni ng. -2- the st at e p en it en ti ar y. 1 By 1997, Mr. Horton wa s an inmate in the South Central Correctional Center in Clifton, a prison managed by Corrections Corpora

tion of America (“CCA”) under a contract with the State of Tennessee. Mr. Horto n had two s eparat e run-in s with pris on offic ials during the fa ll of 1997. First, he addressed a correctional officer as “boy .” Later, in a sepa rate incident, helined up to go to the prison commissary while a count of prisoners was being taken. Prison officials charged him with a Cl ass C disci

plinary offense in each o f these in

cidents. 2

A prison disciplinary board c omposed of CCA employees con ducte d sepa rate he arings regarding each of Mr. Horton ’s off enses. With regard to the first offense, the boar d found Mr. Horton guilty of disrespect and, as punishment, issued a written warningand imposed a two-mon th suspension of

hi s a bi li ty to r eceive packages. At the second hearing, the board found Mr. Hor ton guilty of being out of place

andissu ed him a verba l warn ing. 3 Mr. Horton’s internal appeals to the Assistant Commissione

r for Ope rations a nd the Commi ssioner o f Correction were unsucce ssful.
In March 1998, Mr. Horton filed a pro se petition for

common-law writ of

certiorari in the Chancery Court for Davidson County challeng ing the legality o f both disc iplinary procee dings. He namedas defendants both the Tennessee Depar tment of Correc tion and Doctor R. Crants, CCA’s then chief executive officer. Both the Depa rtment and Mr. Crants moved to dismiss Mr. Horton’s petition, but before the trial court could act on their motions, Mr. Horton moved f or a def ault judgment against Mr. Crants. Th e tri al court denied Mr . Horton’ s motion for default . It a

lso dismissed Mr. Crant s as a party and dismiss ed the por

tion of the

petition challenging the f irst disciplinary proceeding involving the disrespect charge.
With regard to M r. Horton’s challenges to the being out of plac e charge, the trial court dismissed all his claims except for the claim that he had bee n preven

ted from p

resenting his wi tnesses at the he aring. On that iss ue, the tr ial cour t directed the Dep artment t o “submit an y necessary documents or affidavits for the court to consider.” The Departm ent submitt

ed an af fidavit from the chai rman of th

e discipli nary board giving hisversion of why Mr. Horton wa s not allowed to present his desired witness. After Mr. Horton responded, the trial court, treating the Depa rtment’s motion as one for summary judgment, dismissed Mr. Horton’s witness claim on the ground that the disciplinary board ha

d acted within its discretion. This pro se appeal followed.-3- II. T HE R ECORD ON A PPE AL
Before consider ing the s ubstantiv e issues r aised on t his appea l, we note that this case

is yet another occasion where we are be ing asked to rev iew the tr ial court’s denial of a petition for common-law writ of c ertiora ri. As we have recently

noted, we are troubled by a procedure in which trial courts di spose

of petitio ns for co mmon-law writ of cert iorari w hen the pa

rties hav e filed o nly p ortions of the record. Livingston v. Tennessee Bd. of Paroles , No. M1999-01138-COA-R3-C V , 2001 WL 747643, at *5 (Tenn. Ct. App. July 5, 2001) (No Tenn. R. App. P. 11 application filed). As we said in Livingston ,

[W]e have concerns about indiscriminate use of a procedure which involves filing portions of the administrative record for two r easons. First, there is t

he dang er of co nfusion be tw ee n the issue of whether the writ should be granted to compel filing of the record wi th the issue of whether relie

f should be granted based on the rec ord and the petition. Second, the statutory procedures established for review of decisions of administrative boards a nd commissi ons do not a

ppear to contemplate filing of only portions of the administrative record. Livingston v. Tennessee Bd. of Paroles , 2001 WL 747643, at *7.

Thi s problem, while bad enough in its own right, was compounded in this proceedi n g because the trial court dir ected the Depar

tment to “s ubmit

any nec essary

documents or affidavits for the court to consider” on only one of Mr. Horton’s allegations. The trial court should have issued the writ of certiorari directing the De partment to file the official record in both of the challenged procee dings. The end result of the procedure followed by the trial court

is that we have before us only selecte d portionsof the dis cip linary boar d’s rec ord along

with new material s prepar ed in response to the trial court’s dire ctions. Th is is no way to run a ra

ilroad. Nevertheless, to decide whether the trial court correctly

dismissed Mr. Horton’s petition, we will work with the record we have.

III. T HE S TAND ARD O F R EVIEW
A common-la

w writ of c ertiora

ri is an extr

aordina ry judicial re me dy. Robinson v. Tra ughber , 13 S.W.3d 361, 364 (Tenn. Ct. App. 19 99); Fite v. State Bd. of Paroles , 925 S.W.2d 543, 544 (Tenn. Ct. App. 1996). It is not available as a matter of right, Boyce v. Williams , 215 Tenn. 704, 713-14, 389 S.W.2d 272, 277 (1965) ; Yokley v. S tate , 632 S.W.2d 123, 127 (Tenn. Ct. App. 1981), but rather is addres sed to the tr ial co urt's discretion. Blackmon v. Tennessee Bd. of Paroles , 29 S.W.3d 875, 878 (T en n. Ct . A pp . 2 00 0) . A cc or di ng ly, decisions to grant or deny a c ommon-law writ of certiorari
are reviewed using the familiar “abuse of discretion” standard. Robinson v. Traughber , 13 S.W.3d at 364. Under this standard, a reviewing cour tshould not reverse a trial court's discretionar y decision unless it is based on a misapplication of controlling legal principles or a clearly erroneous assessment of the evidence, Overstreet v. Shoney's, Inc. , 4 S.W.3d 694, 709 (Tenn. Ct . App. 199 9), or unl ess it affirma tively appears that the trial court's deci sion was against logic or rea soning, and caused an-4-

injustice or in

ju ry t o t he co mp la in in g p ar ty. Marcus v. Marcus , 993 S.W.2d 596, 601 (Tenn. 1999); Douglas v. Estate of Robertson , 876 S.W.2d 95, 97 (Tenn. 1994).

The scope of review under a common-law writ of certiorari is extremely limited. Courts may not(1) inquire into the intrinsic correctness of the lower tribunal' s decision, Arnold v. Tennessee Bd. of Paroles , 956 S.W.2d 4 78, 480 (Tenn. 1997 ); Powell v. Parole Eligibility Review Bd. , 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994), (2) reweigh the evide nce, Watts

v. Civil Serv. Bd. , 606 S.W.2d 274, 277 (Tenn. 1 980); Hoover, Inc. v. Metropolitan Bd. of Zonin g Appeals , 924 S.W.2d 900, 904 (Tenn. Ct. App. 1996 ), or (3) substitute their judg

ment f o r that of the lower tribunal. 421 Corp. v. Metropolitan Gov't

, 36 S.W.3d 469, 474 (Tenn. Ct. App. 2000). Rather, thewrit per mits the co

urts to examine the lower

tribunal' s decisio n to determine whether the tribunal exceeded its jurisdiction
or acted illegally , fraudulently, or a rbitrarily. Turner v. Tennessee Bd. of Paroles , 993 S.W.2d 78, 80 (Tenn . Ct. App. 1 999); Daniels v. Traughber , 984 S.W.2d 918, 924 (Tenn. Ct. App. 1998).

IV. T HE C LAIMS A GAINST M R . C RANTS Beyond his s ubst antiv e chall enges t o the d iscip linar y proceedi ngs , Mr. Hort on takes issue with the trial court’s denial of his motion for default judgment against Mr. Crants and its decision to dismiss Mr. Crants as an improper party to the suit. We need not tarry long with these procedural matters.
A.
Default judgments are not favored by the courts. Coin Automatic Co. v. Estate of Dixon , 213 Tenn. 311, 321, 375 S.W.2d 858, 862 (1963); Nelson v. Simpson , 826 S.W.2d 483, 485-86 (Tenn. Ct. App. 1991). Aside from instances when default judgments are available as a sancti on, defa ult judgmen ts are only appropriate

when a defendant fails to plead or otherwis e defend again st the suit
as provided in the rules of procedure. Tenn. R. Civ. P. 55.01. While a defendant may always answ er a complaint, a defendant may also defend against a suit by seeking to have a complaint dismissed
on one or more of the grounds set out in Tenn. R. Civ. P. 12.02. A defendant raising defenses listed in Rule 12.02 may do so by filing a motion prior to answeringthe complaint. Filing a proper motion to dismiss c onstitutes “otherwise defend[ing]” against a lawsuit as contemplated in Rule 55.01, making a default judgment improper. Rudnicki v. Sullivan , 189 F. Supp. 714, 715 (D. Mass. 1960); Howse v. Johnson , No. M1998-00513-COA-R3-CV, 2000 WL 758469, at *3 (Tenn. Ct. App. June 13, 2000) (No Tenn. R. App. P. 11 application filed).

In this case , Mr. Cran

ts filed a motion to dismi ss Mr. Hor ton’s com plaint for failure to state a claim for wh ich rel ief can be grant ed. Th at mot ion wa s on fi le and pendi ng whe n Mr. Horton moved for a defa

ul t judgment. Because Mr. Crants had appe ared and interposed a recognized defense to the compl aint by

the time Mr. Horto n sought

a default judgme

nt, the tri al court

correctly denied Mr. Horton’s motion.4 A proper part y i s not neces sari ly a nece ssar

y or i ndis pensa ble pa rty forth e pur pose s of Tenn. R. Civ. P. 19. 01. A person become s a necessary or i ndis pensa ble pa rty only if he or s he wi ll be directly affected by the dec ree and w hose interest is not

represen ted by any o ther pa rty to the litigatio n. Gill ey v. Jernigan , 597 S. W.2d 313, 318 (Tenn. Ct. App. 197 9).
-5- B.

Mr. Horton a

lso insists tha

t Mr. Cran

ts is a prop er part

y to this proc eeding . He asse rts that Mr. Crants and CCAplayed an unla wful role in disciplining him by conducting “a Kangaroo ty

pe court pr ocess . . . [ and] then, upon completion of said performance send the results to the [Depa rtment], who then rubber stamp[ s] the ac tions of the CCA staff

. . ..” How ever, Mr . Crants does not beco m e a necessary party simply

because CCA employees conducted the disciplinary proceeding.

The proper

parties to a lawsuit are those who have legal or equitable rig hts in the subject of the litigation. Steele v. Satterfie ld , 148 Tenn. 649, 654, 257 S.W. 413 , 414 (1923); William H. Inman, Gibson’s Suits in Chancery § 51 ( 7th ed. 1988) (“ Gibson’s S uits in Chanc ery ”). 4 To be a proper party, a pe

rson should be so conn ected with t he dispute as to be under an e

nforce able obligation to the pla

intiff or should hav e some rig

ht o r position with regard to the subject of the litigation that would entitle him to defend against any judgment the court may

give. Gibson’s S

uits in Chance ry § 53. A person is not a proper party if he or she has no interest at stake in the lawsuit andcannot

be affected by

any decision . At the mot

ion to dismis s stage , decisio ns rega rding w ho is
a proper p arty

must be de

termined from the a

llegat ions of the

compla int. Gos s v. Hutchins , 751 S.W.2d 821, 824-25 (Tenn. 1988).

The basic proceduralframework governing petitions f

or a comm

on-law w rit of ce rtiorar i is set out in Tenn. Code Ann. § 27-9-101, -114 (2000)

. Fentress County Beer Bd. v. Cravens , 209 Tenn. 679, 685-86, 356 S.W.2d 260, 263 ( 1962); Levy v. Board of Zon ing Appea ls , No. M1999- 00126-COA-R3-CV, 2001 WL 1141351, at *4 (Tenn. Ct. App. Sept. 27, 2001) (No Tenn. R. App. P. 11 app lication filed). Tenn. Code Ann. § 27-9-104 specifically deals with the proper par tie s defendant in these proceedings. I t provides that the petitioner “shall name as defendants the particular board . . . and such other parties of record, if such, as were involved in the hea ring before the board or commission , and who do notjoin as petitioners.” In addition to the board itself, the proper parties to a certiorariproceeding are the individuals or entitles who were pa rties to the dispute at the board level. Levy v. Board of Zon ing Appea ls , 2001 WL 1141351 at *5.

In this case, Mr. Crants was not per s onally involved in either of Mr. H orton’s disciplinary hea rings. He has no personal rights at stake in the claims made by Mr. Horton concerni ng thos e he aring s. His only

connec tion to this c ase is tha t he is chie

f executiv e offic er of the private corporationthat manages the South Central Correctional Center. That does not make him a proper party to Mr. Horton’s pe

tition. It is well-settled that no CCA employ ee has freestanding power to take disciplinary actions ag ainst state prisoners. The discipline of prisoners is a non-d elega ble duty of the State . Tenn. Co de Ann. § 4 1-24-110 (1997). T

hough the prison d

isciplina ry board at South Central Correctional Center is comprised of CCA emplo yees, those individuals only recommend punishmen

t. Actual discipline is not imposed until a representative of the Department revie ws and-6-

approves the board’s recommendation. Mandela v. Campbell 978 S.W.2d 531, 533 (Tenn. 1998). As we have recently

held, it follows from this arrangement that a petition for certiorari directed at
one or more CCA employee s over a matter of prison discipline fails to state a claim for relief. The proper p a rt y de fe nd an t i n s uc h c as es is th e D ep ar tm en t, as th e r es po ns ib le go ve rn me nt al ag en cy. Wilson v. South Cent. Corr. Facility Disciplinary Bd. , No. M2000-00303-COA-RM-CV, 2000 W L 1425228, at *6 (Te

nn. Ct. App . Sept. 28, 2000) (N o Tenn. R. App. P. 11 a pplicatio n filed); Turner
v. Campbell , 15 S.W.3d 466, 468 (Tenn. Ct. App. 1999). For this reason we find that the chancer y court did not err in dismissing

Mr. Horto n’s compl aint ag ainst Mr. Crants.

V. T HE D ISCI PLI NARY P ROCEEDI NGS
Mr. Horton ta

kes issue with thre e aspects of the d isciplina ry procee dings. With reg ard tothe hearing on the disre spectcharge, he complains that the disciplinary board convicted him without requiring th e r ep or ti ng of fi ce r t o a pp ea r a nd te st if

y. With reg ard to the hearing on the charg e of being out of place, he asserts that the discip linary

board acted arbitrarily

and illeg ally

by r efusing to permit him to call

a staff member as a witness. Finally , with regard to both hearings, he c laims that the proceedi ngs w ere defective because the “Commissioner’s Designee” did not approve the disciplinary board’ s recommended discipline.
A. Mr. Hort on’s Inabilit

y to Call a W

itness
Prisoners do not have an unqualified right to call witnesses at disciplinary hearings. They should be allowed to call witnesses and present documentary evidence in their defense but only as long as doing so

will not be

unduly hazardou s to either

institution al safe

ty or other valid correctional goals. Accordingly , prison officia ls ma y, in their dis cretion , control a prisone

r’s rig ht to call witnesses to assure that the prisoner does not threaten institutional safety or unde rmine institutional goals. Wolff

v. McDo nnell , 418 U.S. 539, 566, 94 S. Ct. 2963, 2979 -80 (1974 ); Davisv. Campbe ll , No. 01A01-9712-CH-00755, 1998 WL 812533, at *3 (Tenn. Ct . App. Nov . 25, 1998)(No Tenn . R. App. P. 11 application filed).

The Depar

t ment’s Un

iform Disciplinary

Procedu res bala nce a pr isoner’ s interes t in presenting witnesse s in his def ense and the institution’s interest in maintaining discipline and order. Prisoners may prese

nt the testimony of relevant witnesses unless requiring the witness to

appear will posea threat to institutional order. Tenn. Dep’t Corr. Policy No. 9502.01(VI)(D)( 3)(c)(6) (1995). Howev er, prisoners desiring to call another prisoner or a member of the prison staff as a witnes s must complete an “inma te witnes s reques t” form and submit it to the chairperson of thedisciplinary boardat least twenty-f our hou rs priorto the hearing. Tenn. Dep’t Corr. Policy No. 9502.01(VI)(D)( 3) (d)(1). The boar d chair may

excuse a p

risoner ’s failur

e to compl

y w ith this rule after taking into consideration the nature of the propo sed witne ss’s testimony and the di fficulty

to obtain the witness’s presence at the hearing . Tenn. Dep’t Corr. Policy No. 9502.01(VI)(D)( 3)(d)(2). Prisoners who are no t permitte d to call a particular witness may present the witness’s written statement instead. Tenn. Dept. Corr. Policy No. 9502.01(VI)(D)( 3)(d)(3).5 Mr. Ho rton as serts that M r. Ho ward would have te stified “that p etitioner ’s walk- c [ sic ] was in the commissary

line and [ that he] se en the p etitioner in the co mm issary line a nd . . . is sued t he pet it ioner

his commis sary at t

he t ime of the alleged offense .” W e do not see how th is testimo ny cou ld have helped exonerate M r. Horton. If anythi ng, it appears to corro bor ate the c hargin g officer ’s report, that Mr. Ho rton got int o the commissary queue be fore the eveni ng coun t of inmates had b een com pleted. It was unqu estionably within the chairperso n’s discretion to refuse to bring in a w itness whose test

imony woul d have added nothing to M r. Ho rton’s case. Cf

. Per ry v. C am pbe ll , No. M1998-00943- COA-R3- CV, 2001 WL 46988, at * 3 (Tenn. Ct. App. Jan . 22, 2001) (N o Tenn. R. Ap p. P. 11 application fil ed) (holding that t he disciplinaryboa rd ch air did not ab use his d iscretio n by re fusing to a ll ow a n inmate to call a witness whose t estimony
wou ld hav e bee n cum ulative).
-7- Mr. Horton announced on the day of the hear

ing on his b eing out of place charg e that he desiredto call Do n Howard, a correctional counselor, a s a witness. The chairperson of the disciplinary

board denied Mr. Horton’srequest because he had not submitted

the requ ired “in mate witness request” form. Mr. Horton does not deny that he failed to submit the required form. The chairpersonwas acting within his discretion whe n he declined to permit Mr. Horton to call Mr. Howard as a witness, and this court need not grant relief to persons who are responsible for the error they are complaining about on appeal. Tenn. R. App. P. 36(a). 5

B. Failure of the R

epor ting O ffice r to T estify

Mr. Horton also insists thatthe disciplinary board a ctedillegally by

convicting him on the disrespect charge without requiring the r e portin g officer to appear a nd testify. The Depa

rtment’s Uniform Disciplinary

Procedures require the reporting officer who witnessed

the infraction to testify at the disciplinary hea

ring “unless this requirement is waivedby the inmate in writing” and provide that, by waiving

the reporting officer’s presence, the prisoner agrees “to have

the offic er’s sta

tements in the disciplinary repor

t accepted by

the board as testimony.” Tenn. Dep’t Corr. Pol ic y N o. 9201(V)(D)(3)(c)(4).
The carbon copy

of the report of the disciplinary procee dings in volving Mr. Horton’s disrespect charg e contains his sig ned waiv er of hisright to have the reporting off

icer pr esent. Becau se he effectively

waived this right

during the disciplinary

proceeding, he cannot take issue on appeal w ith th e failure of the reporting offic er to testify. Tenn. R. App. P. 36(a ). Based on the document s attached to Mr. Horton’s complaint, the trial court properly dismissed the portion of his pe ti ti on fo r c om mo n- la w w ri t o f c er ti or ar i p re di ca te d o n t he re po rt in g o ff ic er ’s fa il ur e t o t es ti fy.
C. Review and Approval by the Commissioner’s Designee
The employ

ees of pr ivately operated prisons, such as the South Central Correctional Center, do not have the authority to discipline prisoner s. Tenn. Code Ann. § 41-24-110(5). This autho rity is, as a matter of law, reserved to the Commi ssioner a

nd cannot be dele gated. Accord ingly , with regard to disciplinary proceedings involving Class C disciplinary offenses, the Uniform Disciplinary Procedures require

the chai rperso n of a disciplina

ry board consisting

of employ

ees of a private contractor

to fo rw ar d t he bo ar d’ s p ro po se d p un is hm en t, un le ss th e p un is hm en t i s s im pl y a “verbal warning,” to the commissioner’s designee prior to the imposition of punishment. Tenn. Dep’t Corr. Policy No. 9502.01(VI)(D)( 2) (1995). Accord ingly , the boar

d’s propo sed punish

ment is si mp ly a6 It may very well be t hat the f ull record of

the proceedi ngs reg arding t his di scipl inary inf

racti on would revea l that the co mm issioner ’s design ee in fac t app rove d the p unishm ent prio r to it s impo sition. However, the Depa rtment elect ed not to file the comp lete record o f the proceed ing. As an app ellate court, we must ba se our d ecision only on the conte nts of t

he appel lat e recor d.
-8- recommendation, and the final approvalof a disc iplinary action r ests solel y w iththe commissioner’s designee. Mandela v. Campbell , 978 S.W.2d at 533.

After the trial court decided th

is case, we addressed the consequences of a disciplinary bo ard’s failure

to obtain th

e approv al of the

commissioner’s de signee before imposing discipli ne
. The Department argued, just as it does here, tha t compliance with Tenn. Dep’t Corr. P olicy No. 9502.01(VI)(D)( 2) was unnecessary in circumstances where the prisoner had appealed the discipline to the assist

ant commis sioner a

nd ultimate

ly to the commissioner. We disagreed and held that the Department

could not s idestep th

e plain r equirem ents of its own Uniform Disciplinary Proc edures by relying on prisoner-initiated ap peals to avoid Tenn. Code Ann. § 41-24-110(5)’s plain prohibition. Pigg v. Casteel , No. 01A01-9807-CH-00384, 1999 WL 166499, at *4 (T enn. Ct. App. Mar. 29, 1999) (No Tenn. R. App. P. 11 application filed).

As far as the appellate record shows, Mr. H orton received only an oral wa

rning as hi s punishmentfor being out of place. Because Ten n. Dep’t Policy No. 9502.01(VI )(D)(2) does not require approva

l of the c ommissione

r’s desig nee prio r to the imp ositi on of an oral warning, the disciplinary

board co uld issue a

n oral wa rning to Mr. Horto n without any involvement by the commissioner’s designee. Accordingly , the trial cou rt prope rly dismissed the portion of Mr. Horton’s petition challenging the p rocedur es rela ted to his b eing ou

t of plac e charge for fa

ilure to state a claim upon which relief can be g ranted.

The punishment Mr. Horton received for the disrespect cha rge was more severe tha

n an oral warni ng. Accordingly , the disciplinary board w as required to obtain the a pprov al of the commissioner’s designee before imposing it. The appe llate record contains no indication that the disciplinary

board complied with

Tenn. De

p’t Polic y No. 950 2.01(VI)(D)( 2) with regard to Mr. Horton’s disre spect charge. Theref ore, fo llow ing Pigg v. Casteel , we find that Mr. Horton has stated a claim upon which relief can be g ranted with regard to the disrespect charge. 6

VI.

We affirm the trial court’s decision to dismiss the portions of Mr. Horton’s petition f or writ of common-law certiorarichallenging his conviction for being out of place. However, we vaca te the dismissal of the portion of Mr. Horton’s petition relating to his disrespect conviction and remand the
case to the tria

l court fo r furthe r proce edings c onsistent with this opini on. We tax the cos ts of this appeal to the State of Tennessee.

_____________________________ WILL IAM C. KOCH, JR., JUDGE