Joshua Hilliard v. Turney Center Disciplinary Board

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 5, 2012

JOSHUA HILLIARD v. TURNEY CENTER DISCIPLINARY BOARD, ET

AL.

Appeal from the Chancery Court for Hickman County

No. 11CV4364 Timothy L. Easter, Judge

No. M2011-02213-COA-R3-CV - Filed November 19, 2012

Inmate appeals the dismissal of his petition for writ of certiorari. The chancery court

dismissed the petition for lack of subject matter jurisdiction based upon the expiration of the

applicable statute of limitations and because inmate failed to show that the prison disciplinary

board acted illegally, fraudulently, or arbitrarily. We affirm, finding the inmate failed to

show that the disciplinary board exceeded its jurisdiction or acted illegally, fraudulently, or

arbitrarily.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which F RANK G. C LEMENT, J R.

and R ICHARD H. D INKINS, JJ., joined.

Joshua Hilliard, Wartburg, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; William Young, Solicitor General; and

Pamela S. Lorch, Senior Counsel, for the appellee, State of Tennessee.

OPINION

F ACTUAL AND P ROCEDURAL B ACKGROUND

The appellant, Joshua Hilliard, is a Tennessee Department of Correction (“TDOC”)

inmate who was confined at the Turney Center Industrial Complex at the time of the

incidents that underlie this case. On November 1, 2010, Mr. Hilliard was summoned to the

prison’s disciplinary board to defend himself against charges of participating in security

threat group activities and assault which allegedly occurred on October 10, 2010. Mr.

Hilliard pled not guilty to both charges, but the disciplinary board found him guilty of both

charges and sentenced him to punishment that included two $5.00 fines, 30 days punitive

confinement,1 and loss of 57 prison sentence reduction credit days.

Mr. Hilliard exhausted his administrative remedies by appealing to the Warden and

to the TDOC Commissioner. The Warden reviewed Mr. Hilliard’s appeal, disciplinary

report, hearing summary, and all related documentation, and found “no justification which

warrants a modification of the action taken by the disciplinary board.” The Warden further

concluded that “[p]unishment guidelines were not exceeded” and that “[n]o violations of

disciplinary procedures were cited or ascertained” and accordingly affirmed the disciplinary

board’s decision on November 22, 2010. The TDOC Commissioner found no due process

violations, concurred with the Warden’s affirmation of the guilty finding against Mr. Hilliard,

and denied Mr. Hilliard’s final appeal on December 13, 2010.

On February 15, 2011, Mr. Hilliard filed a petition for common law writ of certiorari

in the chancery court, seeking review of the prison disciplinary board’s decision against him.

After the appellees responded with a notice of no opposition, the chancery court granted the

writ of certiorari, and the appellees filed the certified record of the disciplinary proceedings,

pursuant to Tenn. Code Ann. § 27-9-109. After the certified record was filed, however, the

appellees moved for dismissal on the ground that Mr. Hilliard did not file his petition within

the applicable 60-day statute of limitations and thereby deprived the chancery court of subject

matter jurisdiction. In response, Mr. Hilliard argued for denial of the motion to dismiss

“because the petition was timely filed and put in the hands of prison officials . . . [p]ursuant

to Tenn. R. Civil P. 5.06 . . . .” By order entered September 29, 2011, the chancery court

found as follows:

For the reasons stated in the [appellees’] Motion to Dismiss and accompanying

Memorandum in Support, this Court finds the instant petition for writ of

certiorari does not meet the constitutional and statutory requirements requiring

that such writs be timely filed.

Further, the Court has closely reviewed the certified copy of [Mr. Hilliard’s]

disciplinary record for incident #00867706, assault, and incident # 00867718,

participating in security threat group activities, filed with this Court on May

27, 2011, and finds that [Mr. Hilliard] has failed to show that the board acted

illegally, fraudulently, or arbitrarily. Thus, even if timely filed, the instant

Petition should be dismissed on its merits.

1

Ten of these days were punishment for participating in security threat group activities and twenty

days were punishment for assault.

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After a full review [of] all the pleadings that have been filed in this matter, the

Court is satisfied that the Petition For Common Law Writ of Certiorari should

be dismissed.

Mr. Hilliard appeals.

S TANDARD OF R EVIEW

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Subject matter jurisdiction involves a court’s authority to adjudicate a particular

controversy. Jackson v. Tenn. Dep’t. of Corr., 240 S.W.3d 241, 243 (Tenn. Ct. App. 2006)

(citing Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000)). Our Supreme Court

has held that, “[s]ince a determination of whether subject matter jurisdiction exists is a

question of law, our standard of review is de novo, without a presumption of correctness.”

Northland Ins. Co., 33 S.W.3d at 729.

B. Common Law Writ of Certiorari

“The common-law writ of certiorari serves as the proper procedural vehicle through

which prisoners may seek review of decisions by prison disciplinary boards, parole eligibility

review boards, and other similar administrative tribunals.” Willis v. Tenn. Dep’t of Corr.,

113 S.W.3d 706, 712 (Tenn. 2003) (citing Rhoden v. State Dep’t of Corr., 984 S.W.2d 955,

956 (Tenn. Ct. App. 1998)). The scope of review is limited to “a determination of whether

the disciplinary board exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily.”

Id. (citing Turner v. Tenn. Bd. of Paroles, 993 S.W.2d 78, 80 (Tenn. Ct. App. 1999); South

v. Tenn. Bd. of Paroles, 946 S.W.2d 310, 311 (Tenn. Ct. App. 1996)). We do not review the

correctness of the board’s decision under the common law writ of certiorari. Arnold v. Tenn.

Bd. of Paroles, 956 S.W.2d 478, 480 (Tenn. 1997).

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). On

appeal, we must uphold the board’s decision if it is supported by any material evidence. See

Gordon v. Tenn. Bd. of Prob. & Parole, No. M2006-01273-COA-R3-CV, 2007 WL

2200277, at *2 (Tenn. Ct. App. July 30, 2007).

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D ISCUSSION

We begin by noting our recognition that Mr. Hilliard proceeds pro se in this appeal

as he did in the chancery court. While we afford pro se litigants a significant amount of

leeway, Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003), we may not excuse

them from adhering to the same procedural rules and substantive law applicable to all parties,

Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988).

We now address the threshold issue of whether Mr. Hilliard timely filed his petition.

Tennessee Code Annotated section 27-9-102 provides the time for filing a petition for writ

of certiorari:

Such party shall, within sixty (60) days from the entry of the order or

judgment, file a petition of certiorari in the chancery court of any county in

which any one (1) or more of the petitioners, or any one (1) or more of the

material defendants reside, or have their principal office, stating briefly the

issues involved in the cause, the substance of the order or judgment

complained of, the respects in which the petitioner claims the order or

judgment is erroneous, and praying for an accordant review.

This sixty-day statute of limitations “is mandatory and jurisdictional, and the failure to file

a petition within that period of time deprives the court of subject matter jurisdiction.”

Jackson, 240 S.W.3d at 247 (citing Gore v. Tenn. Dep’t of Corr., 132 S.W.3d 369, 379

(Tenn. Ct. App. 2003)). In cases such as the one before us, the date that the TDOC

Commissioner denies the prisoner’s appeal is the latest possible date on which the statute of

limitations begins to run. See, e.g., Wilson v. Tenn. Dep’t of Corr., No. W2005-00910-COA-

R3-CV, 2006 WL 325933, at *5 (Tenn. Ct. App. Feb. 13, 2006).

Here, the TDOC Commissioner entered the order denying Mr. Hilliard’s appeal on

December 13, 2010, so Mr. Hilliard’s deadline to file his petition in the chancery court was

February 11, 2011. While it is undisputed that Mr. Hilliard’s petition was stamped “filed”

on February 15, 2011, Mr. Hilliard argues that he timely filed the petition pursuant to Tenn.

R. Civ. P. 5.06,2 often referred to as the “prisoner mailbox rule.” As evidence of his timely

2

In determining when an action is timely filed, Tenn. R. Civ. P. 5.06 allows an incarcerated pro se

litigant some leeway, and provides in pertinent part:

If papers required or permitted to be filed pursuant to the rules of civil procedure are

prepared by or on behalf of a pro se litigant incarcerated in a correctional facility and are not

(continued...)

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filing under this rule, Mr. Hilliard attached to the response to appellees’ motion to dismiss

a two-way message dated February 10, 2011. It reads as follows:

TWO WAY MESSAGE [Seal of the State of Tennessee]

To Hilliard #335427 From Counselor

A/109

Subject: Legal Mail Date 2-10-11

I personally carried your legal mail to the post office at 8:00 AM this date. The

postage was $1.90. I furnished the postage for the package from my indigent

supply. Had you filled out a withdrawal form the legal mail would not have

gone out today. This way you will not be late. I used 5 stamps. If you wish,

when you can you may pay back the (5) stamps so I may help someone else in

the future.

Date 2-10-11 Signed P Edwards

The chancery court’s September 29, 2011 final order of dismissal does not mention

the two-way message that Mr. Hilliard referenced in and attached to his September 9, 2011

response to appellees’ motion to dismiss. Based on our review of the record, Mr. Hilliard

has successfully established compliance with the prisoner mailbox rule. The two-way

message from counselor Edwards operates, in effect, as Mr. Hilliard’s receipt that his “papers

were delivered to the appropriate individual at the correctional facility within the time fixed

for filing.” Tenn. R. Civ. P. 5.06. The message is written onto what appears to be an official

form, and it is written entirely in counselor Edwards’s handwriting. We reasonably infer that

the “legal mail” referenced in the message was Mr. Hilliard’s petition for writ of certiorari,

and find that, in this case, the two-way message is relevant, reliable evidence of timely filing

pursuant to Tenn. R. Civ. P. 5.06.

As to the merits of Mr. Hilliard’s petition, based on our careful review of the record,

we cannot find that the Turney Center disciplinary board exceeded its jurisdiction or acted

2

(...continued)

received by the clerk of the court until after the time fixed for filing, filing shall be timely

if the papers were delivered to the appropriate individual at the correctional facility within

the time fixed for filing. . . . Should timeliness of filing or service become an issue, the

burden is on the pro se litigant to establish compliance with this provision.

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illegally, fraudulently, or arbitrarily. On appeal, Mr. Hilliard argues that his due process

rights were violated because the “Disciplinary Board chairperson failed to independently

verify the reliability of confidential information and [because] a CR-3510 form was not

completed nor presented to the court to show information reliability.” The TDOC Uniform

Disciplinary Procedures govern prison disciplinary hearings and provide in pertinent part:

When the disciplinary hearing officer/chairperson determines that he/she

should receive testimony from a confidential source whose identity cannot be

disclosed due to either a fear of reprisal, or a breach of security information,

or determines that he/she should receive evidence of a confidential/security

sensitive nature, it shall be the responsibility of the disciplinary hearing officer

to independently access and verify the reliability of the informant’s testimony

and/or the confidential security sensitive evidence.

...

Whenever confidential information or confidential security sensitive evidence

is utilized by the disciplinary hearing officer/chairperson as a basis for its

decision, the TDOC Contemporaneous Record of Confidential Informant

Reliability, CR-3510, shall be completed to document the factual basis for the

disciplinary hearing officer’s/chairperson’s finding that the informant and/or

security sensitive evidence was reliable. . . . This form shall be considered

confidential and kept as a non-public access record in an area designated by

the Warden.

TDOC Policy 502.01(VI)(L)(4)(e) and (g). Though Mr. Hilliard alleges that a CR-3510 form

was not completed, the record before us is silent on this issue, so we cannot consider it. See

Tenn. R. App. P. 13(c). Furthermore, even if the Turney Center disciplinary board hearing

officer/chairperson did complete a CR-3510 form, it would be confidential and properly

excluded from the record in accordance with the TDOC Policy cited above.

We are left to determine whether the prison disciplinary board’s decision against Mr.

Hilliard is supported by any material evidence. The disciplinary report hearing summary,

CR-1834, indicates that at the hearing Sergeant Turney testified that Mr. Hilliard was

identified by the victim (inmate Green) and by a confidential informant as one of the inmates

who “beat down” inmate Green. The disciplinary board hearing officer/chairperson was

required to consider Sergeant Turney’s testimony if it found it reliable. TDOC Policy

502.01(VI)(L)(4)(c)(2) (“The board/hearing officer shall consider all evidence which it finds

to be reliable, whether or not such evidence would be admissible in a court of law.”). We

have thoroughly reviewed the record, and it shows that Mr. Hilliard received notice of the

disciplinary charges against him, that he received a fair hearing at which he was given the

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chance to be heard and present witness statements, and that material evidence supports the

Turney Center disciplinary board’s disposition of his case. Mr. Hilliard has failed to show

that the disciplinary board exceeded its jurisdiction or acted illegally, fraudulently, or

arbitrarily. We conclude that he was afforded the process he was due.

C ONCLUSION

For the foregoing reasons, we affirm the chancery court’s dismissal of Mr. Hilliard’s

petition on the merits. Costs of appeal are assessed against the appellant, Joshua Hilliard,

and execution may issue if necessary.

______________________________

ANDY D. BENNETT, JUDGE

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