The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 4, 2013
KHOURY L. KINNARD v. TENNESSEE DEPARTMENT OF
CORRECTION, ET AL.
Appeal from the Chancery Court for Hickman County
No. 11CV4631 Robbie T. Beal, Chancellor
No. M2012-01637-COA-R3-CV - Filed March 18, 2013
Certiorari proceeding in which an inmate sought review of disciplinary board proceeding
finding him guilty of possession/use of a cell phone. The trial court granted motion to
dismiss the proceeding on the ground that it sought to challenge the correctness of the
disciplinary board’s decision. Finding no error, we affirm the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
P. J., M. S., and F RANK G. C LEMENT, J R., J., joined.
Khoury L. Kinnard, Only, Tennessee, Pro Se
Robert E. Cooper, Jr., Attorney General and Reporter; William Young, Solicitor General; and
Shauna Jennings, Assistant Attorney General, Nashville, Tennessee, for the Appellee,
Tennessee Department of Correction.
OPINION
Khoury Kinnard, an inmate of the Tennessee Department of Corrections (“TDOC”)
presently incarcerated at Turney Center Industrial Complex (“TCIC”), filed a petition for a
common law writ of certiorari in Hickman County Chancery Court, seeking review of the
action of the Turney Center Disciplinary Board in finding him guilty of possession/use of a
cellular phone and imposing sanctions; Mr. Kinnard subsequently filed an amended petition.
The respondents filed a motion to dismiss the amended petition, asserting that it sought to
challenge the intrinsic correctness of the disciplinary board’s decision and was, therefore, not
within the scope of review available under common law certiorari. Respondents’ motion was
granted. Mr. Kinnard thereafter filed a motion for a new trial, which was denied. Mr.
Kinnard appeals.
DISCUSSION
The purpose of a Tenn. R. Civ. P. 12.02(6) motion to dismiss is to determine whether
the pleadings state a claim upon which relief can be granted. In reviewing a motion to
dismiss, we must liberally construe the complaint, presuming all factual allegations to be true
and giving the plaintiff the benefit of all reasonable inferences. See Pursell v. First Am. Nat’l
Bank, 937 S.W.2d 838, 840 (Tenn. 1996); see also Trau-Med of Am., Inc. v. Allstate Ins. Co.,
71 S.W.3d 691, 696–97 (Tenn. 2002). Thus, a complaint should not be dismissed for failure
to state a claim unless it appears that the plaintiff can prove no set of facts in support of his
or her claim that would warrant relief. See Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.
1999); Fuerst v. Methodist Hosp. S., 566 S.W.2d 847, 848 (Tenn. 1978). Making such a
determination is a question of law which we review de novo, with no presumption of
correctness afforded the trial court’s decision. Frye v. Blue Ridge Neuroscience Ctr., P.C.,
70 S.W.3d 710, 712–13 (Tenn. 2002); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000).
The common law writ of certiorari is “the proper procedural vehicle through which
prisoners may seek review of decisions by prison disciplinary boards. . . .” Willis v. Tenn.
Dep’t of Corr., 113 S.W.3d 706, 712 (Tenn. 2003). Court review of prison disciplinary
board proceedings was explained in Powell v. Parole Eligibility Review Bd.:
The scope of review under the common law writ, however, is very narrow. It
covers only an inquiry into whether the Board has exceeded its jurisdiction or
is acting illegally, fraudulently, or arbitrarily, Yokley v. State, 632 S.W.2d 123
(Tenn. App. 1981). Conclusory terms such as “arbitrary and capricious” will
not entitle a petitioner to the writ. Id. At the risk of oversimplification, one
may say that it is not the correctness of the decision that is subject to judicial
review, but the manner in which the decision is reached. If the agency or
board has reached its decision in a constitutional or lawful manner, then the
decision would not be subject to judicial review.
Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994); see
also Maney v. Tenn. Bd. of Paroles, No. 01A01-9710-CV-00562, 1998 WL 755002, at *2
(Tenn. Ct. App. Oct. 30, 1998).
In the amended petition Mr. Kinnard recites the history of the circumstances leading
to the charge filed against him, the applicable TDOC disciplinary and hearing procedures,
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and the evidence at the hearing which resulted in his conviction; pertinent to the issues in this
appeal are the following allegations:
8. The basis of the allegation [of the charge of Possession/Use of a Cellular
Telephone] was the discovery, by a prison official, of a photograph of Mr.
Kinnard on an internet social networking site.
11. The only physical evidence offered by the reporting employee was a
photograph of Mr. Kinnard.
12. The reporting employee testified that another prison employee provided
her with a copy of the photograph in question, via e-mail.
14. The reporting employee failed to prove, by a preponderance of the
evidence, that Mr. Kinnard possessed or used a cellular telephone.
16. At his prison disciplinary hearing, Respondent Sgt. Clendennon denied
Mr. Kinnard his right to confrontation when he refused Mr. Kinnard’s request
to contact the TDOC employee who allegedly sent the reporting employee the
photograph in question.
17. Mr. Kinnard’s mother testified that she posted the photograph in question
to the social networking site and provided the disciplinary board with
instructions on how to confirm her testimony. However, the disciplinary board
failed to confirm the origin of the photograph.
18. Based solely on the testimony of the reporting employee and with no
material evidence, the disciplinary board convicted Mr. Kinnard and imposed
sanctions of a $5 fine, fifteen (15) days punitive segregation, and removal of
three (3) months prison sentence reduction credits.
19. Under Wolff v. McDonald [citation omitted] and Superintendent v. Hill
[citation omitted], Mr. Kinnard had a liberty interest in his sentence reduction
credits and inmate trust fund account respectively, that triggered due process
protections in his prison disciplinary hearing. The respondents violated Mr.
Kinnard’s rights to due process by failing to follow the essential elements of
the law in withdrawing funds from Mr. Kinnard’s inmate trust fund account
and depriving him of previously earned sentence reduction credits.
20. The respondents’ actions were illegal, arbitrary, and substantially
prejudicial to Petitioner in that they failed to follow the essential elements of
the law when they convicted Petitioner based on no material evidence.
[citation omitted].
Affording the allegations of the amended petition the presumption of truth and the
benefit of all reasonable inferences, the petition fails to allege facts which would support a
determination that Mr. Kinnard is entitled to the relief available under the common law writ;
the insistence that his conviction is not supported by the evidence is an attack on the intrinsic
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correctness of the decision which is beyond the scope of review. Likewise, the allegation
that the conviction is not supported by the evidence does not support a claim of violation of
a due process right. See Powell, 879 S.W.2d at 873.
Mr. Kinnard’s hearing was conducted pursuant to TDOC Policy No. 502.01.1 In
paragraph 16 of the amended petition he complains of the denial of a “right of confrontation”
in the course of the hearing. The factual allegation of Paragraph 16, however, liberally
construed, does not support a claim that TDOC Policy No. 502.01 VI L4c(6), which allows
an inmate to present the testimony of relevant witnesses, was not followed; Mr. Kinnard does
not allege that he made an effort to secure the testimony of the witness to whom he refers and
that he was prevented from doing so.
In paragraph 19 Mr. Kinnard alleges that his due process rights were violated when
“the respondents . . . fail[ed] to follow the essential elements of the law in withdrawing funds
from [his] inmate trust fund account and depriving him of previously earned sentence
reduction credits.” Conclusory allegations such as this cannot support the issuance of a writ.
Flowers v. Traughber, 910 S.W.2d 468, 470 (Tenn. Crim. App. 1995). Mr. Kinnard has
failed to assert facts which, if true, state a claim for deprivation of his due process rights.2
1
TDOC Policy No. 502.01 is a comprehensive policy which governs disciplinary procedures with
the purpose of providing for “the fair and impartial determination and resolution of all disciplinary charges
placed against inmates committed to the Tennessee Department of Correction.” Central to Policy No. 502.01
is the following statement of policy:
Fair and impartial disciplinary proceedings will be administered against inmates charged
with disciplinary infractions. The procedures contained herein alone shall govern the
disciplinary process. This policy is not intended to create any additional rights for inmates
beyond those which are constitutionally required. Minor deviations from the procedures set
forth below shall not be grounds for dismissal of a disciplinary offense unless the inmate is
able to show substantial prejudice as a result and that the error would have affected the
disposition of the case.
TDOC Policy No. 502.01 V.
2
We note that due process rights in the context of prison disciplinary proceedings are markedly
different than those involved in criminal proceedings. See Keen v. Tenn. Dep’t. of Corr., No. M2007-00632-
COA-R3-CV, 2008 WL 539059, at *3 (Tenn. Ct. App. Feb. 25, 2008); Willis v. Tenn. Dep’t. Corr., 113
S.W.3d 710–12 (Tenn. 2003).
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CONCLUSION
For the foregoing reasons, the judgment of the Chancery Court for Hickman County
is affirmed.3
_________________________________
RICHARD H. DINKINS, JUDGE
3
We have also considered Mr. Kinnard’s contention that the trial court erroneously denied his
motion for a new trial. We have determined that the court did not deny the motion as untimely filed but,
rather, addressed the merits of the motion. We find no error in the denial of the motion.
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