Tony Willis v. Dept of Correction

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

June 3, 2003 Session

TONY WILLIS Et Al. v. TENNESSEE DEPARTMENT OF CORRECTION

Appeal by permission from the Court of Appeals, Middle Section

Chancery Court for Davidson County

No. 99-3332-III Hon. Ellen Hobbs Lyle, Chancellor

No. M2000-01397-SC-R11-CV - Filed August 27, 2003

The issue in this case is the proper standard to be applied to motions to dismiss petitions for

common-law writ of certiorari in prison disciplinary proceedings. This appeal involves a prisoner

who was charged with and convicted of the disciplinary violation of attempted escape. The prisoner

filed a petition for a common-law writ of certiorari in the Chancery Court for Davidson County

challenging the action of the disciplinary board arguing that it was illegal, arbitrary, and excessively

punitive. The chancery court granted the Department of Correction’s motion to dismiss for failure

to state a claim because the process provided to the petitioner was commensurate with the sanctions

imposed upon him, and therefore, there was no violation or deprivation of due process. The majority

of the Court of Appeals affirmed the trial court’s judgment, with Judge Koch dissenting. We granted

Petitioner’s request for permission to appeal, and after conducting our own de novo review of the

record, we hold that the petitioner did state a claim for relief under the common-law writ of certiorari

because his petition alleged that the disciplinary board failed to follow its own disciplinary

guidelines and that the petitioner was substantially prejudiced thereby. At the same time, we agree

with the Department of Correction that the petitioner did not state a claim for relief under the due

process clause of the United States Constitution or the Tennessee Constitution. Accordingly, the

decision of the Court of Appeals is reversed in part, affirmed in part, and the case is remanded to the

trial court for further proceedings.

Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of

Appeals is affirmed in part and reversed in part

WILLIAM M. BARKER, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,

E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.

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Brian Dunigan,1 Goodlettsville, Tennessee, for the appellant, Edward Tharpe.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michael

W. Catalano, Associate Solicitor General, for the appellee, Tennessee Department of Correction.

OPINION

FACTUAL BACKGROUND

The appellant, Edward Tharpe, is a prisoner at the Turney Center Industrial Prison and Farm.

He and his cellmate, Tony Willis, were convicted of the disciplinary offense of attempted escape,

based on the discovery of a pair of pliers in their cell and on information provided by a confidential

informant. The disciplinary board punished them each with a thirty-day sentence of punitive

segregation, involuntary administrative segregation, and a five-dollar fine. Tharpe and Willis

appealed to the Warden, who upheld the decision of the disciplinary board. Petitioners thereafter

appealed to the Commissioner of the Tennessee Department of Correction, who agreed with the

Warden’s affirmation of the decision.

Having exhausted their administrative remedies, Tharpe and Willis filed a petition for

common-law writ of certiorari in the Chancery Court for Davidson County, seeking judicial review

and reversal of their convictions. In their joint petition, they alleged that they were not given

sufficient notice of the charges against them prior to the hearing; they were not given access to

exculpatory evidence; and the disciplinary board did not independently assess the credibility of the

confidential informant upon whose testimony it relied in convicting the petitioners. The petitioners

alleged that because these actions were in violation of the Department of Correction Uniform

Disciplinary Proceedings, their convictions were illegal and arbitrary.

The Attorney General, on behalf of the Department of Correction (Department), filed a

motion to dismiss for failure to state a claim upon which relief can be granted. A second motion to

dismiss, with an attached memorandum of law,2 was filed on February 25, 2000, because the first

motion was not accompanied by a memorandum of law.

1

The C ourt expresses its gratitude to counsel for the ap pellant for accep ting our app ointment in this case

without compensation.

2

The Attorney General’s motion simply asserted that the petition should be dismissed “[p]ursuant to Tenn.

R. Civ. P. 12.02(1) and (6).” This motion fails to meet the basic requirements of Tennessee Rule of Civil Procedure

7.02 (1) wh ich req uires that motions must “state with p articularity the grounds therefor.” For the purposes of a

Tennessee Rule of Civil Procedure 12.02(6) motion, the moving party must state in its motion why the plaintiff has

failed to state a claim for which relief can be granted. Including the grounds for a Rule 12 .02(6) motion in a separate

mem orandum of law does not comply with Rule 7.02 (1). It is unc lear why the Clerk and Master included this

memorandum of law in the appellate record in light of Tennessee Rule of Appellate Procedure 24(a)’s language that

trial briefs and co unsel’s memo randa of law are no t part of the reco rd on app eal.

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The Chancery Court granted the Department’s motion to dismiss, finding that the petitioners

failed to state a claim for which relief is available through a common-law writ of certiorari because

the punishments they received “are not atypical in relation to the ordinary incidents of prison life.”

Based on the “undisputed facts of record,” the court also concluded that “the process provided to the

petitioners to contest and defend against disciplinary sanctions was commensurate with the sanctions

imposed on them and, therefore, there was no violation or deprivation of due process.”

Tharpe appealed the decision of the Chancery Court.3 Relying on Sandin v. Conner, 515 U.S.

472 (1995), the majority of the Court of Appeals determined that Mr. Tharpe’s petition failed to state

a claim upon which relief can be granted because the punishment received was not harsh enough to

amount to the imposition of “atypical and significant hardship . . . in relation to the ordinary

incidents of prison life.” Judge Koch dissented, arguing that the majority’s reliance on Sandin was

misplaced.

Before this Court, Tharpe argues that he is entitled to relief because the disciplinary board

acted arbitrarily and illegally by failing to comply with its own procedural rules and thereby denied

him his day in court. He also argues that the board deprived him of a property interest that was

protected by the Due Process Clauses of the United States Constitution and the Tennessee

Constitution. The Appellee asks us to uphold the decision of the trial court and its reliance on

Sandin v. Conner.

We agree with Tharpe that his petition did state a claim for relief under the common-law writ

of certiorari. However, we also conclude that his petition did not state a claim for deprivation of due

process under either the federal or state constitutions. Therefore, for the reasons contained herein,

the decision of the Court of Appeals is affirmed in part, reversed in part, and the case is remanded

for further proceedings.

STANDARD OF REVIEW

The sole purpose of a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss is to test

the sufficiency of the complaint, not the strength of the plaintiff’s evidence. Doe v. Sundquist, 2

S.W.3d 919, 922 (Tenn. 1999); Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn. 1997). When reviewing

a dismissal of a complaint under Rule 12.02(6), this Court must take the factual allegations contained

in the complaint as true and review the trial court’s legal conclusions de novo without giving any

presumption of correctness to those conclusions. See, e.g., Doe v. Sundquist, 2 S.W.3d at 922.

Because a motion to dismiss a complaint under Rule 12.02(6) challenges only the legal sufficiency

of the complaint, courts should grant a motion to dismiss only when it appears that the plaintiff can

prove no set of facts in support of the claim that would entitle the plaintiff to relief. See, e.g., Trau-

Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002).

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W hile both Mr. Tharpe and M r. Willis filed a notice of appeal, only Mr. Tharpe filed a brief with the

Court of Appe als. Acc ordingly, M r. W illis’s appeal was d ismissed in acco rdance with T ennessee R ule of A ppe llate

Procedure 2 9(c).

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DISCUSSION

DUE PROCESS

In his petition for common-law writ of certiorari, Tharpe alleged that the prison

disciplinary board failed to follow the rules in the Uniform Disciplinary Procedures,

and, as a result, his conviction for attempted escape was illegal and arbitrary. Instead

of allowing Tharpe relief under the common-law writ of certiorari, the Court of Appeals determined

that Tharpe had failed to state a claim for violation of his due process rights under the United States

Constitution and the Tennessee Constitution. The Court of Appeals relied upon Sandin v. Conner

to hold that Mr. Tharpe’s petition failed to state a claim upon which relief can be granted because

the punishment he received was not harsh enough to amount to the imposition of “atypical and

significant hardship . . . in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484.

The Due Process Clause of the Fourteenth Amendment provides that no State shall “deprive

any person of life, liberty, or property, without due process of law.” U.S. CONST . amend. XIV, § 1.4

Consequently, a claim of denial of due process must be analyzed with a two-part inquiry: (1) whether

the interest involved can be defined as “life,” “liberty” or “property” within the meaning of the Due

Process Clause; and if so (2) what process is due in the circumstances. See Bd. of Regents v. Roth,

408 U.S. 564, 569-70 (1972); Rowe v. Bd. of Educ., 938 S.W.2d 351, 354 (Tenn. 1996).

Deprivation of an interest which is neither liberty nor property does not trigger the procedural

safeguards of the Due Process Clause. See Sandin, 515 U.S. at 483-84; Rowe, 938 S.W.2d at 354.

The United States Supreme Court has addressed, on several occasions, the issue of when a

prisoner is deemed to have been deprived of a liberty interest. In Sandin, the Court held that a liberty

interest is not created unless the disciplinary restraints being imposed on a prisoner are atypical in

comparison to the “ordinary incidents of prison life.” Sandin, 515 U.S. at 483-84. In that case, the

Court held that thirty days of punitive segregation was not a dramatic departure from the basic

conditions of the prisoner’s indeterminate sentence, and therefore, the prisoner was not entitled to

due process protection. Sandin, 515 U.S. at 486.

Thus, pursuant to Sandin, we find that Tharpe was not deprived of a liberty interest when he

was punished with punitive and administrative segregation. However, Tharpe argues that Sandin

does not control the outcome of this case because unlike the prisoner in Sandin, he was not only

punished with segregation, but was also assessed a monetary fine of five dollars.

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W e have previously held that Article I, section 8 of the Tennessee Constitution, which provides that “no

man shall be taken o r imprisoned, or d isseized of his freehold, liberties o r privileges, or o utlawed , or exiled, or in

any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the

land,” is synonym ous with the “due pro cess” provisions o f the federal constitution. See State v. Hale, 840 S.W.2d

307 , 312 (Te nn. 19 92); State ex rel. Anglin v. M itchell, 596 S.W .2d 7 79, 7 86 (Tenn. 19 80). The refore, we will

address the federal and state due process claims together.

4

State prisoners in Tennessee have a property interest in the funds in their prison trust fund

accounts. Jeffries v. Tenn. Dep’t of Corr., 108 S.W.3d 862, 872 (Tenn. Ct. App. 2002); see also

Hampton v. Hobbs, 106 F.3d 1281, 1287 (6th Cir. 1997) (holding that prisoners have a protected

interest in their money). It would follow, therefore, that the imposition of a monetary fine to be paid

from that trust fund account would constitute a deprivation of a property interest. If a property

interest has been implicated, we must then determine what process is due under the circumstances.

The answer to that question is situational because due process is a flexible concept that calls for only

those procedural protections that the particular situation demands. See Mathews v. Eldridge, 424

U.S. 319, 335 (1976); Wilson v. Wilson, 984 S.W.2d 898, 902 (Tenn. 1998); Phillips v. State Bd.

of Regents of State Univ. & Cmty. Coll. Sys. of Tenn., 863 S.W.2d 45, 50 (Tenn. 1993).

Three factors must be considered in determining the procedural protections demanded by a

particular situation:

(1) the private interest at stake; (2) the risk of erroneous deprivation of the interest

through the procedures used and the probable value, if any, of additional or substitute

procedural safeguards; and finally (3) the government’s interest, including the

function involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.

State v. Culbreath, 30 S.W.3d 309, 317-18 (Tenn. 2000) (citing Wilson, 984 S.W.2d at 902); see also

Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (recognizing the need for “mutual accommodation

between institutional needs and objectives and the provisions of the Constitution that are of general

application”).

The relative weight of a property or liberty interest is relevant to the extent of due process

to which one is entitled. However, where the interest is truly de minimis, procedural rights can be

dispensed with altogether. See Goss v. Lopez, 419 U.S. 565, 576 (1975); Carter v. W. Reserve

Psychiatric Habilitation Ctr., 767 F.2d 270, 272 n.1 (6th Cir. 1985) (two day suspension was

considered “de minimus and not deserving of due process consideration”).

In the case under consideration, Tharpe was fined five dollars, to be paid from his prison trust

account. The government’s interests, including fiscal and administrative burdens of providing

additional process, outweigh the petitioner’s interest in his five dollars. The de minimus nature of

the fine makes it immune from procedural due process requirements. At the very least, the amount

of the fine certainly does not warrant any more process than Tharpe actually received.5 For these

reasons, Tharpe failed to state a claim for violation of his due process rights.

COMMON-LAW WRIT OF CERTIORARI

5

While Tharpe’s petition challenges the amount of process he received, there is no dispute that he received

some pro cess, in that he did receive a hea ring and was allowed to testify on his own b ehalf.

5

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. See Rhoden v. State Dep’t of Corr., 984 S.W.2d

955, 956 (Tenn. Ct. App. 1998) (citing Bishop v. Conley, 894 S.W.2d 294 (Tenn. Crim. App. 1994)).

By granting the writ, the reviewing court orders the lower tribunal to file its record so that the court

can determine whether the petitioner is entitled to relief.

A common-law writ of certiorari limits the scope of review to a determination of whether the

disciplinary board exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily. 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). The petition does not empower the courts to inquire into

the intrinsic correctness of the board’s decision. Arnold v. Tenn. Bd. of Paroles, 956 S.W.2d 478,

480 (Tenn. 1997); Robinson v. Traughber, 13 S.W.3d 361, 364 (Tenn. Ct. App. 1999). Previously,

we have specifically approved the use of a common-law writ of certiorari to remedy (1)

fundamentally illegal rulings; (2) proceedings inconsistent with essential legal requirements; (3)

proceedings that effectively deny a party his or her day in court; (4) decisions beyond the lower

tribunal’s authority; and (5) plain and palpable abuses of discretion. State v. Willoughby, 594

S.W.2d 388, 392 (Tenn. 1980).

Here, Tharpe alleges that the prison disciplinary board’s proceeding was inconsistent with

essential legal requirements, in that it failed to follow the Tennessee Department of Correction

Uniform Disciplinary Procedures. Because the Department chose to proceed under a Rule 12.02(6)

motion to dismiss, we must accept as true the allegations set forth by Tharpe in his petition and

presume that the disciplinary board failed to comply with the Uniform Disciplinary Procedures as

set forth below.

The Uniform Disciplinary Procedures exist “[t]o provide for the fair and impartial

determination and resolution of all disciplinary charges placed against inmates.” TDOC Policy No.

502.01(II). While it “is not intended to create any additional due process guarantees for inmates

beyond those which are constitutionally required,” deviations from the policy will warrant dismissal

of the disciplinary offense if the prisoner demonstrates “some prejudice as a result and the error

would have affected the disposition of the case.” TDOC Policy No. 502.01(V).

A prisoner seeking judicial review of a prison disciplinary proceeding states a claim for relief

under common-law writ of certiorari if the prisoner’s complaint alleges facts demonstrating that the

disciplinary board failed to follow the Uniform Disciplinary Procedures and this failure substantially

prejudiced the petitioner. Thus, for Tharpe to survive a motion to dismiss, his petition must allege

that the disciplinary board followed an unlawful procedure and that he was substantially prejudiced

thereby.

First, Tharpe alleges that he and Willis were not provided with adequate notice of the charges

against them. The Uniform Disciplinary Procedures provide that prisoners are entitled to notice of

their disciplinary infraction by receiving written notice of the charges at least twenty-four hours

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before the hearing with the disciplinary board. TDOC Policy No. 502.01(VI)(A)(3)(c),

(VI)(D)(3)(b). It is unclear from the petition to what extent, if any, the petitioners received notice

of the charges against them.6 The petition states that “there was no specific statutory provision of

Tennessee law or Tennessee Department of Correction . . . Policy alleged or cited in the disciplinary

reports in order to properly place Petitioners on notice of the specific provision of law or regulation

they allegedly violated.” If the petitioners received no notice of the charges against them, this would

be patently prejudicial; if they did receive notice, but that notice was somehow defective, its

prejudicial nature would depend on the particular shortcomings of the challenged notice.

Second, Tharpe asserts that he was prevented from obtaining and introducing relevant

“exculpatory” evidence. If true, this conduct would be contrary to the prisoners’ qualified right to

introduce evidence and call witnesses in disciplinary proceedings. Tennessee Department of

Correction Policy Number 502.1(VI)(E)(2)(c)(6) provides that an “inmate shall be permitted to

present the testimony of relevant witness(es), unless allowing a witness to appear would pose a threat

to institutional safety or order.” Policy Number 502.1(VI)(E)(2)(c)(3) provides that a prisoner in a

disciplinary hearing “will be allowed to cross-examine any witness (except a confidential source)

who testified against him/her and to review all adverse documentary evidence (except confidential

information).”

The evidence sought to be admitted by the petitioners related to the chain of custody of the

pair of pliers that were found in the petitioners’ cell. Presuming the truth of the facts alleged in the

petition, this evidence was certainly relevant and could have affected the outcome of the proceeding.

Finally, Tharpe alleges that the disciplinary board did not independently assess the credibility

of the confidential informant upon whose testimony apparently formed part of the basis for finding

him guilty of attempted escape.7 If substantiated, this would be a departure from the Uniform

Disciplinary Procedures, which require the chairperson to independently “assess and verify the

reliability of the informant’s testimony” and, when the information provides a basis for the board’s

decision, “to document the factual basis for the disciplinary hearing officer’s/chairperson’s finding

that the informant’s information was reliable.” TDOC Policy No. 502.01(VI)(E)(2)(e). Compliance

with this procedure promotes the reliability of prison disciplinary proceedings because prisoners may

be denied the opportunity to confront and cross-examine their accusers when prison officials are

concerned about reprisals or other security issues. Failing to independently verify the credibility of

the confidential informant could easily have prejudiced both Mr. Tharpe and Mr. Willis because they

could have been convicted of a serious disciplinary offense based on false or unreliable evidence.

6

In his pro se brief to the Court of Appeals, petitioner Tharpe stated that he was issued a “disciplinary

infraction report” for the alleged offense of “Attempted Esca pe” and attached a cop y of this rep ort to his brief.

Ho wever, this repo rt is not pa rt of the ap pellate record because it was not introduced in the trial court. We cannot

take judicial no tice of materials appe nded to b riefs that are not prope rly part o f the reco rd on app eal.

7

Tharpe asserts that this informant was another prisoner who “concocted” the escape story to induce the

prison officials to drop drug possession charges that were pending against him.

7

The Uniform Disciplinary Procedures provide the principal means of ensuring that

disciplinary proceedings are fair, reliable, and impartial. The integrity of disciplinary systems is

important to the stability of a corrections program. If the Tennessee Department of Correction were

to violate its own policies to such a degree that it administered punishment without a reliable

determination of guilt, such a violation would be without legal authority and an abuse of discretion.

Accordingly, we hold that the petition states a cause of action with respect to its allegations that the

disciplinary board violated its own rules and policies and that the petitioner was substantially

prejudiced thereby. On these allegations, a common-law writ of certiorari shall issue.

CONCLUSION

In summary, we find that the facts in Tharpe’s petition, which we are required to accept as

true, fail to state a cause of action for due process violations under either the United States

Constitution or the Tennessee Constitution. We also hold, however, that Tharpe’s petition did state

a claim upon which relief can be granted under common-law writ of certiorari. Tharpe alleged that

the disciplinary board’s actions deviated substantially from the procedures set forth in the Tennessee

Department of Correction Uniform Disciplinary Procedures and that those actions substantially

prejudiced the outcome of the hearing. Because this is an appeal of a grant of a motion to dismiss,

we must assume that the allegations are true and cannot address the merits of Tharpe’s allegations.

Therefore, the case is remanded to the trial court, where the court will issue the writ of certiorari

directing the Department to file the record. The court will then address the substance of Mr.

Tharpe’s claims in light of the record of the proceedings.

The judgment of the Court of Appeals is reversed, and costs on appeal are taxed to the

appellee, Department of Correction.

_____________________________

WILLIAM M. BARKER, JUSTICE

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