John F. Johnson v. Tennessee Department of Correction

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 10, 2010

JOHN F. JOHNSON v. TENNESSEE DEPARTMENT OF CORRECTION,

ET AL.

Appeal from the Chancery Court for Hickman County

No. 09-230C Jeffrey S. Bivens, Chancellor

No. M2010-00665-COA-R3-CV - Filed December 22, 2010

Certiorari proceeding in which an inmate seeks reversal of trial court’s affirmance of

disciplinary board proceeding finding inmate guilty of solicitation of staff in violation of

Tennessee Department of Correction policy and grant of judgment on the record to the

Tennessee Department of Corrections. Petitioner asserts that the decision of the disciplinary

board was unsupported by material evidence and was procedurally defective. 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 F RANK G. C LEMENT,

J R. and A NDY D. B ENNETT, JJ., joined.

John F. Johnson, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;

and Kellena Baker, Assistant Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural History

In April 2009, John F. Johnson (“Petitioner”), an inmate presently incarcerated at

Turney Center Industrial Prison, sought to appeal an unfavorable decision on his

consideration for release on parole. Among the material filed in support of his appeal, Mr.

Johnson included information pertaining to three former inmates; the information was

obtained from the TOMIS1 system, which contains information on persons under the

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Tennessee Offender Management Information System

supervision of TDOC. An investigation requested by the Board of Paroles ensued, focusing

on how Mr. Johnson secured the information, which was not otherwise available to him.

Included in the investigating officer’s report was the following:

THIS APPEAL INCLUDED THREE INMATES . . . FACE SHEET’S,

BOARD ACTION SUMMARY VOTING LISTS FROM TOMIS, BOARD

MEMBER VOTE DETAIL FROM TOMIS, BOARD MEMBER DETAIL

“A” SCREEN FROM TOMIS, BOARD MEMBER DETAIL “B” SCREEN

FROM TOMIS, SOME TIMES NOTED AS BEING PRINTED WERE

4/5/2009 5:42 PM, 4/2/2009 10:48 AM, 4/2/2009 10:44 AM. ALL TOMIS

PRINT OFFS ENSURED THE EMPLOYEE BI NUMBER WAS WHITED

OUT. THERE WERE ALSO TOMIS INCIDENT REPORTS ON THE

LISTED INMATES IN WHICH INMATE JOHNSON 148720 WAS NOT

INVOLVED AND HAD NO REAL REASON TO POSSESS THESE TOMIS

DETAILS.

INMATE JOHNSON 148720 WAS NOT COOPERATIVE DURING

THE INVESTIGATION AND GAVE FALSE LEADS AS TO THE

EMPLOYEE WHOM WAS RESPONSIBLE FOR GIVING THIS INMATE

UNAUTHORIZED INFORMATION OF OTHER INMATES.

The disciplinary proceeding at issue in this appeal was initiated based on the results of the

investigation.

A disciplinary hearing was held on June 17, 2009, at which time Mr. Johnson was

assisted by an inmate advisor. The disciplinary board convicted Mr. Johnson of the offense

of solicitation of staff and assessed his punishment at a $5.00 fine, sixty days of probation

and loss of sentence credits. Mr. Johnson’s separate appeals to the warden and the

commissioner were unsuccessful. He then filed a Petition in the Hickman County Chancery

Court for a common law writ of certiorari, seeking review of the action of the disciplinary

board.2 The petition alleged that the board’s decision was unsupported by material evidence

and was otherwise procedurally defective. The petition was granted, the writ issued, and the

record of the proceeding was filed with the court.

Respondents thereafter filed a Motion for Judgment on the Record, to which Mr.

Johnson responded. The trial court granted the motion, finding that the conviction was

supported by sufficient evidence, that Tennessee Department of Correction (“TDOC”) policy

does not require that the person solicited be identified in either the disciplinary report or in

the course of the hearing, and that Mr. Johnson had been afforded his rights to due process

2

Named as Respondents in the Petition were the Tennessee Department of Correction,

Commissioner George Little, Sergeant Jack Middleton, Warden James Fortner, and Sergeant Nicky Jordan.

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of law in connection with the disciplinary proceeding. Mr. Johnson appeals, presenting the

following issues for review:

1. Should the Tennessee Department of Correction disciplinary board’s

decision be reversed when its decision is unsupported by material evidence?

2. Should the Tennessee Department of Correction disciplinary board’s

decision be reversed where the board has not exercised its responsibility in

accordance with legal requirements and presented the court below with all the

proof submitted before the board?

3. Was the Tennessee Department of Correction disciplinary board

hearing procedurally defective in a significant way when the board relied upon

evidence not provide[d] at the disciplinary hearing?

II. Scope of Review

The disciplinary board’s action is reviewed through the common-law writ of certiorari.

Rhoden v. State Dep’t of Corr., 984 S.W.2d 955 (Tenn. Ct. App. 1998). Under the certiorari

procedure, the inquiry before this court is whether the board exceeded its jurisdiction or acted

illegally, fraudulently, or arbitrarily; we do not review the intrinsic correctness of the decision

and will not grant relief if the decision was reached in a lawful and constitutional manner.

Maney v. Tenn. Bd. of Paroles, No. 01A01-9710-CV-00562, 1998 WL 755002 (Tenn. Ct.

App. Oct. 30, 1998). We do not weigh the evidence but must uphold the decision “if there

is any material evidence to support the [tribunal’s] findings.” Ross v. Tenn. Dep’t of Corr.,

No. W2008-00422-COA-R3-CV, 2008 WL 4756873 at *2 (Tenn. Ct. App. Oct. 30, 2008)

(quoting Jackson v. Tenn. Dep’t of Corr., No. W2005-02240-COA-R3-CV, 2006 WL

1547859 at *3 (Tenn. Ct. App. June 8, 2006)).

III. Discussion

Mr. Johnson contends that the board’s decision is unsupported by the evidence and

that because he was not able to see the documents allegedly solicited or confront the solicited

party, he was prevented him from presenting his defensive proof. He states that “necessary

proof to sustain his conviction for solicitation of a staff member would have been the alleged

solicited staff member and the alleged solicited documents” and that the failure of the board

to require such proof was a “substantial deviation” from TDOC policy. He does not identify

the specific provision of the policy which he contends sets forth the proof necessary to

sustain a conviction for solicitation or the manner in which he alleges the policy was not

followed.

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The procedures governing TDOC disciplinary hearings are contained at TDOC Policy

No. 502.01 VI L, with the rights of the inmate who pleads not guilty specified at No. 502.01

VI L 4 c. The decision of the disciplinary board is to be based “solely on the information

obtained during the hearing process, including staff reports, the statements of the inmate

charged . . . and any other evidence from witnesses and documents.” No. 502.01 VI L 4 k.

The inmate enjoys the presumption of innocence and the case against the inmate must be

proven by a preponderance of the evidence. No. 502.01 VI L 4 k(1).

Initially, we address Mr. Johnson’s contention that the identification of the staff

member solicited or production of the documents obtained as a result of the solicitation was

necessary to sustain his conviction.

Mr. Johnson was charged with violation of Policy No. 502.05 VI A 66 of the

Administrative Policies and Procedures of the TDOC which designates solicitation of staff

as a Class A offense and defines it as follows:

To ask or seek a relationship with institutional or contract employees which

extends beyond the normal inmate/employee interaction. This includes, but is

not limited to, fraternization, business transactions, social association, romance

or friendship.

Contrary to Mr. Johnson’s argument, identification of the employee is not necessary to

sustain a finding that an offense has been committed. So long as the person solicited is an

institutional or contract employee the policy is violated; indeed, there may be compelling

reasons not to disclose the identity of the employee. Likewise, there is nothing in the

wording of the offense that requires production of the actual documents obtained as a result

of the solicitation to sustain the offense.

In making its decision, the disciplinary board had before it the testimony and report

of Sergeant Jordan, the investigating officer. The disciplinary report states, among other

things, that Mr. Johnson was not cooperative during the investigation and gave false leads

relative to the employee assertedly responsible for giving him the information used with

respect to the appeal of the denial of his parole application. The hearing summary indicates

that Mr. Jordan entered a plea of not guilty and stated that his girlfriend had sent the TOMIS

screens to him. The board entered findings of fact and identified the evidence in support of

its findings, which included the following: the fact that Mr. Johnson used the TOMIS

documents with his earlier appeal; the disciplinary report; and the testimony of Officer

Jordan. As with any fact-finding body, the board is free to draw inferences from the

evidence before it and, as noted, it is not our function to re-weigh the evidence. The

evidence of record is sufficient to sustain the board’s finding that Mr. Johnson was engaged

in fraternization or a business transaction with an institutional employee beyond normal

interaction; as a consequence, the decision of the board finding Mr. Johnson guilty of

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soliciting staff is not arbitrary. See Watts v. City Serv. Bd. for Columbia, 606 S.W.2d 274,

276–77 (Tenn. 1980).

Mr. Johnson further contends that the fact that he was not able to see the documents

or confront the solicited party prevented him from presenting his defensive proof at the

hearing. He identifies this “contradictory evidence he ultimately presented on appeal” as the

affidavit of Seantell Booker and asserts that “Ms. Booker’s affidavit and accompanying

exhibits {the documents presented by Mr. Johnson to the parole board} would have been

compared to the original solicited documents that Correctional Officer Nicky Jordan made

reference to in his disciplinary report.”

We fail to see how the fact that the solicited party was not identified or that Mr.

Johnson was not able to view the original documents prevented him from presenting Ms.

Booker’s affidavit (or the information contained in the affidavit) at the hearing, if he desired.

He was aware that an investigation had been undertaken to determine how he got the

documents to attach to his parole appeal papers, and he had been interviewed by the

investigating officer; the record reflects that Mr. Johnson was uncooperative with the

investigation and gave false leads. He does not contend that he was prohibited in any way

at the hearing from introducing the affidavit of Ms. Booker. To the extent Mr. Johnson had

information which he wished the disciplinary board to consider he has failed to identify any

action or ruling of the board that prevented him from doing so.

IV. Conclusion

Mr. Johnson’s challenge to the conduct of his hearing as violating TDOC policy is

without merit; the hearing was conducted and evidence received in accordance with TDOC

policy and the finding that he violated Policy No. 502.05 VI A 66 is supported by the

evidence.3 In the handling of this matter, the disciplinary board did not act arbitrarily,

capriciously, or in an illegal manner. We find no error in the determination by the trial court

and, consequently, affirm same.

___________________________________

RICHARD H. DINKINS, JUDGE

3

As noted in Wolff v. McDonnell, 418 U.S. 539 (1974), a prison disciplinary proceeding is “not part

of a criminal prosecution and the full panoply of rights due a defendant in such proceedings does not apply.”

Wolff, 418 U.S. at 556. The sufficiency of the evidence to sustain the finding of guilt is determined by the

preponderance of the evidence in accord with 502.01 VI L 4 k (1).

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