Clark v. Rose

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

On-Briefs June 30, 2005

JAMES W. CLARK v. JIM ROSE

A Direct Appeal from the Chancery Court for Lauderdale County

No. 11,487 The Honorable Martha B. Brasfield, Chancellor

No. W2004-02744-COA-R3-CV - Filed August 1, 2005

Petitioner/Appellant is an inmate in the custody of the Tennessee Department of

Correction. This is the second appeal before this Court arising from the Appellant’s filing of the

underlying pro se petition for common law writ of certiorari, seeking review of the procedures

used by the Tennessee Department of Correction in reaching its decision to keep Appellant

confined in administrative segregation. This Court initially remanded the case to the trial court

for a determination of whether the inmate’s status was punitive or non-punitive in nature. Upon

remand, the trial court determined that his status was non-punitive. Inmate appeals. Finding that

the trial court did not abuse its discretion in its determination that inmate’s status was non-

punitive and that, as such, the common law writ of certiorari was not the proper means of

challenging his status, we affirm.

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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,

J. and DAVID R. FARMER , J., joined.

James W. Clark, Jr., Pro Se

Paul G. Summers, Attorney General and Reporter; Jennifer R. Bailey, Assistant Attorney General

for Appellee, Jim Rose

OPINION

James W. Clark (“Petitioner,” or “Appellant”) is an inmate in the custody of the Tennessee

Department of Correction (“TDOC”). Jim Rose (“Respondent,” or “Appellee”) is the former

Assistant Commissioner for Operations of the TDOC. By order of the warden, Mr. Clark was placed

in Involuntary Administrative Segregation (“AS”) in September, 1997. Mr. Clark initially filed a

“Petition for Writ of Certiorari” (the “Petition”) on February 10, 2000, seeking judicial review of the

procedures used by the TDOC in reaching its decision to keep Mr. Clark confined in AS. Mr. Rose

was apparently never served and, consequently, failed to respond to Mr. Clark’s Petition. Mr. Clark

then filed a motion for default judgment on May 22, 2000. On June 21, 2000, Mr. Clark filed a

motion to show cause and request for ruling with the trial court. On August 7, 2000, Mr. Clark filed

a writ of Mandamus with this Court, which was denied by Order dated April 10, 2001. The trial

court filed its Order of Dismissal on April 22, 2002, wherein it denied Mr. Clark’s request for default

judgment and dismissed his Petition, finding that a prisoner’s security status or security classification

cannot be determined or changed through a writ of certiorari because such determination is

administrative, as opposed to judicial, in scope. Mr. Clark appealed that decision to this Court. By

Order of February 5, 2003, this Court overturned the trial court’s dismissal and remanded the case

for a determination of whether Mr. Clark’s AS status was punitive in nature thereby invoking certain

rights. See Clark v. Rose, No. W2002-01245-COA-R3-CV, 2003 WL 21051737 (Tenn. Ct. App.

Feb. 5, 2003) (“Clark I”). Specifically, this Court, in Clark I, held that:

[a] writ of certiorari should issue requiring the Department to file the

record of the proceedings at the administrative level. After the record

is filed, the trial court shall conduct the appropriate judicial review.

Such review will determine if the Appellant’s stay in AS is truly

punitive, thereby invoking the rights appurtenant to such a

classification.

Id. at *8 (citations omitted).

Pursuant to this Court’s holding in Clark I, on April 23, 2003, the Lauderdale County

Chancery Court issued an order granting the writ of certiorari and ordering the TDOC to file Mr.

Clark’s records of disciplinary reports and AS reviews from September 19, 1997 through November

14, 2001. On June 23, 2003, the TDOC filed these records. After reviewing these records (through

February 10, 2000–the date on which Mr. Clark’s Petition was filed), the trial court entered an

“Order of Dismissal” (the “Order”) on July 30, 2003. The Order reads, in pertinent part, as follows:

The records show that on September 19, 1997, while the

Petitioner was incarcerated at Turney Center, he was charged with

assault for stabbing a fellow inmate with a prison-made knife. A

Disciplinary Report Hearing Summary dated September 22, 1997,

which was signed by the Petitioner, indicates that the Petitioner pled

guilty to the assault. In the section entitled “Statement of Accused,”

the Petitioner made the following statement (copied verbatim):

“Guilty Plea–I had to do what a man has to do. He

was a snake and a snitch and he disrespected me. I

tried to get him to stop and went to folks and they

wouldn’t do anything, so I did. I’m only sorry that he

didn’t die–because that’s what I intended to do was

kill him. I kept getting busted w/my dope and

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everything pointed to him–and he questioned my

dedication to B.G.D. organization which disrespected

me. My folks would do anything, so I stuck him to

show what happens when you do that. This was just

between he and I.”

The disciplinary board sentenced the Petitioner to 30 days of

punitive segregation, imposed a $5.00 fine, recommended placement

in involuntary administrative segregation, and loss of 9 months of

good behavior credits. The board stated that the Petitioner “has

demonstrated he is a threat to the Safety and Security of other

Inmates, Staff, and this Institution.” The warden approved the

board’s recommendation to place the Petitioner in administrative

segregation. (See Involuntary Administrative Segregation Placement

Report dated September 22, 1997.)

The record filed by the TDOC includes monthly Involuntary

Administrative Segregation Review Reports from September 22,

1997, through February 10, 2000. The forms through March 16,

1998, contain statements made by the Petitioner, such as “I would

like to be transferred,” “I would like to go to Northeast, do not want

to go west,” and “want a job.” TDOC comments on the forms state

that this was the second time Petitioner had been given maximum

security status, and that he had a history of disruptive/assaultive

behavior. Thus, it appears that the Petitioner’s continued placement

in administrative segregation was reviewed on a monthly basis, that

the reviews considered his disciplinary history, and that they included

interviews with the Petitioner during which he was allowed to make

statements. The forms also indicate that between December 11, 1997,

and January 15, 1998, the Petitioner was transferred from Turney

Center to the West Tennessee High Security Facility, where his

placement in administrative segregation continued.

On April 4, 1998, the Petitioner was “written up” for refusing

a drug screen and for possession of security threat group (gang-

related) materials. At a disciplinary hearing on April 13, 1998, the

Petitioner pled guilty to refusing the drug screen, and the disciplinary

board found him guilty of possession of security threat material. He

was sentenced to 20 days of punitive segregation, and his visitation

was limited to clergy and attorneys for a period of one year.

On June 22, 1998, the Petitioner was charged with assaulting

a staff member. The disciplinary report indicates that correctional

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officers confiscated a notebook from the Petitioner’s cell, and a

scuffle ensued during which the Petitioner kicked one of the

correctional officers in the head and right leg. The disciplinary board

found him guilty of this charge on June 24, 1998, and sentenced him

to 20 days of punitive segregation.

Administrative Segregation Review forms from September,

1998, through February, 1999, contain statements made by the

Petitioner asserting that he was falsely charged for the assault on the

correctional officers, and that his attitude and behavior were “fine.”

The administrative segregation review panel continued to recommend

administrative segregation, and the recommendations were approved

by the warden.

The review form for May, 1999, notes “11 months without

infraction.” The form dated June, 1999, notes “improving record of

behavior” and “inmate works in unit library.” Beginning in August,

1999, the Petitioner made comments that he posed no threat of

violence, that his attitude and behavior were “high spirited,” and that

he wished to be released from administrative segregation to close

security status. In December, 1999, the Petitioner noted, “Interview

at cell door not as meaningful as meeting a panel. Counselor already

made decision before seeing me.” During all of these months, the

panel recommended continued placement in administrative

segregation.

Findings

Based on a thorough review of the record, the Court finds that

the Petitioner was held in administrative segregation for security

reasons, and not as part of a disciplinary action. The Court notes that

the Petitioner was serving a 135-year sentence for grand larceny,

attempted felony larceny, two counts of aggravated burglary, three

counts of theft of property, two counts of attempted first degree

murder, two counts of especially aggravated robbery, and five counts

of second degree burglary [emphasis in original]. The Petitioner’s

statement concerning the infraction which led to his placement in

administration [sic] segregation is set out above. His later

actions–possession [of] gang-related material and assaulting a

correctional officer–are set out above. These actions were obviously

considered by the persons who reviewed the Petitioner’s

administrative segregation status. It is obvious from the

documentation entered that the persons reviewing his administrative

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segregation status were aware of his day-to-day actions and attitude

at the TDOC facilities where he was housed.

The Court finds that the Petitioner was afforded monthly

reviews concerning his continued confinement in administrative

segregation, that these reviews were conducted in accordance with

TDOC policy, and that ample evidence exists which indicates that the

Petitioner’s continued confinement in administrative segregation was

non-punitive in nature.

IT IS, THEREFORE, ORDERED, ADJUDGED, and

DECREED, that the Petition for Writ of Certiorari should be, and is

hereby, dismissed.

As noted by the trial court in of footnote to its Order, Mr. Clark’s records concerning his AS

status after February 10, 2000 (the date of the filing of his Petition) indicate that, in July 2000, a

phase-down of Mr. Clark’s security status (from Level III to Level II) was begun, with a goal of

ultimately releasing Mr. Clark from AS. Mr. Clark was also given various jobs at the TDOC facility

where he was housed. In January 2001, he was recommended to be placed at Level I; however, in

February 2001, Mr. Clark was involved in a fight with another inmate and was returned to Level III

status.

Mr. Clark appeals from the Order of the trial court and raises two issues as stated in his brief:

I. Whether the Appellee blatantly refused to allow the Appellant to

have a meaningful review of his classification status as guaranteed by

the statutes and Tennessee Department of Correction[] Policy, in

violation of the 14th Amendment to the United States Constitution and

Article[s] 1 and 8 of the Tennessee Constitution?

II. Whether the trial court erred by dismissing the Appellant’s

Complaint in violation of his 14th Amendment rights to [sic] the

United States Constitution?

Here, as in his first appeal to this Court, Mr. Clark challenges the absence or sufficiency of

a “meaningful review” of his AS status in alleged violation of the relevant Tennessee Statutes and

the TDOC’s own policies. However, since a prisoner lacks a liberty interest in “freedom from

administrative segregation...which is non-punitive,” Woodruff v. Tenn. Dep’t of Corr., No. M2001-

00494-COA-R3-CV, 2002 WL 1974138 (Tenn. Ct. App. Aug. 28, 2002), before reaching Mr.

Clark’s stated issues, we must first review the trial court’s determination of the nature (i.e. whether

punitive or non-punitive) of Mr. Clark’s AS. This review is necessary because, in Tennessee, “[t]he

proper vehicle for challenging a disciplinary action is a petition for a common law writ of

certiorari....” Rhoden v. State Dep’t of Corr., 984 S.W.2d 955, 956 (Tenn. Ct. App. 1998)

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(emphasis added). This is because “[a] prisoner disciplinary proceeding cannot be reviewed directly

under the Uniform Administration Procedures Act because the Act removes such proceedings from

the definition of a contested case.” Id. at 956 (citing T.C.A. § 4-5-106(b)) (emphasis added).

However, as noted by this Court in Clark I, reviews of non-disciplinary actions fall under the review

of the UAPA and, consequently, cannot be challenged by a common-law writ of certiorari, to wit:

[T]he review being sought concerns the decision to keep the

Appellant in AS, as opposed to his initial placement there. This

decision does not involve the prison disciplinary board, only the

administrative review panel. We fail to see how an administrative

panel’s review of a non-disciplinary action can amount to a

disciplinary proceeding thereby removing it from the purview of the

UAPA. Accordingly, we hold that... the common law writ is not “the

appropriate vehicle” for challenging such an action.

Clark, 2003 WL 21051737 at *4.

As noted above, the trial court denied Mr. Clark’s Petition for Writ of Certiorari based upon

its finding that Mr. Clark’s “...continued confinement in administrative segregation was non-punitive

in nature.” Since a writ of certiorari is not available as a matter of right, its grant or denial is within

the sound discretion of the trial court. Such decision will not be reversed on appeal unless there is

abuse of that discretion. Hall v. McLesky, 83 S.W.3d 752, 757 (Tenn. Ct. App. 2001) (citing Boyce

v. Williams, 215 Tenn. 704, 389 S.W.2d 272, 277 (1965)).

We have reviewed the entire record in this case, including the Administrative Segregation

Review Reports. The comments on these reports indicate that Mr. Clark has a history of assaults and

disruptive behavior. Furthermore, while in AS, Mr. Clark has had several incidents that have

resulted in disciplinary reports, including refusing a drug screen, possession of security threat

material, and assault of a staff member. In addition, when Mr. Clark’s security status was phased-

down to Level I in January of 2001, he was returned to Level III status just one month later because

of his involvement in a fight with another inmate. From the record as a whole, we find ample

evidence from which the trial court could conclude that Mr. Clark’s AS was based upon security

concerns and not upon a punitive objective. Therefore, we find that the trial court did not abuse its

discretion in finding that Mr. Clark’s AS was non-punitive in nature and that, consequently, his

Petition for Writ of Certiorari should be dismissed as such is not a proper vehicle for grievances

arising from non-disciplinary actions. The specific issues raised by Mr. Clark are rendered moot by

our findings herein.

For the foregoing reasons, we affirm the Order of the trial court dismissing Mr. Clark’s

Petition for Writ of Certiorari. Costs of this appeal are assessed against the Appellant, James W.

Clark, and his surety.

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__________________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

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