Tony Willis v. Dept of Correction

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 13, 2001

TONY WILLIS, ET AL. v. TENNESSEE

DEPARTMENT OF CORRECTION

Appeal from the Chancery Court for Davidson County

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

No. M2000-01397-COA-R3-CV - Filed June 5, 2002

Petitioners, state inmates, filed the underlying pro se petition for common-law writ of certiorari to

seek review of disciplinary sanctions imposed on them by the Tennessee Department of Correction

for attempted escape. Petitioners alleged that their due process rights were violated because: (1) they

were not given sufficient notice of the hearing; (2) their convictions were based upon information

from a confidential informant; (3) they were denied the right to call witnesses, and; (4) they were

denied access to exculpatory evidence. The trial court dismissed the suit for failure to state a claim.

Because the petition failed to allege sanctions that imposed atypical and significant hardships beyond

those ordinarily incident to prison life, we affirm the decision of the trial court.

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

Affirmed and Remanded

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S.,

joined. WILLIAM C. KOCH, JR., J., filed a dissenting opinion.

Edward Tharpe, Nashville, Tennessee, Pro Se.

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

Bernal, Assistant Attorney General; for the appellee, Tennessee Department of Correction.

OPINION

Edward Tharpe and Tony Willis are prisoners incarcerated by the Tennessee Department of

Correction. Mr. Tharpe and Mr. Willis were convicted by the Turney Center Industrial Prison and

Farm’s prison disciplinary board for the disciplinary infraction of “attempted escape” after a pair of

pliers was discovered taped to the bottom of a fan in the cell they shared. Each inmate was punished

with punitive segregation, involuntary administrative segregation, and a five dollar ($5.00) fine.

After exhausting their administrative remedies by appealing the disciplinary board’s decision

to both the warden and the Commissioner of the Department of Correction, Mr. Willis and Mr.

Tharpe filed a petition for common-law writ of certiorari seeking review of the decision of the

disciplinary board. The Tennessee Department of Correction filed a motion to dismiss the suit for

failure to state a claim upon which relief can be granted under Tenn. R. Civ. P. 12.02(6). The trial

court granted the motion, on the grounds that the process provided to the petitioners to contest and

defend against disciplinary sanctions was commensurate with the sanctions imposed upon them and,

therefore, there was no violation of due process. Relying on Sandin v. Conner, 515 U.S. 472, 481-

85, 115 S. Ct. 2293, 2299-301, 132 L. Ed. 2d 418, 428-31 (1995), the trial court determined that Mr.

Tharpe and Mr. Willis had no protected liberty interests and, therefore, their due process claims were

dismissed.

Mr. Tharpe and Mr. Willis timely filed a notice of appeal with this court.1 On appeal, Mr.

Tharpe alleges that his due process rights were violated by the procedures used in the disciplinary

board proceedings. Because the petition failed to allege sanctions which were atypical or unexpected

in the context of incarceration after criminal conviction, we affirm the decision of the trial court.

I. Common-law Writ of Certiorari

Mr. Tharpe and Mr. Willis filed a petition for writ of certiorari in the Davidson County

Chancery Court alleging, inter alia, due process violations in that they were not provided with

adequate notice of the charges against them, prohibited from calling witnesses at their disciplinary

board hearing, denied access to exculpatory evidence, and charged based on information from a

confidential informant.

The common-law writ of certiorari is the proper procedural vehicle for a prisoner seeking

review of a disciplinary board’s action. 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. Ct. App. 1994)). Under such a

petition, a court’s review of an administrative board’s decision is limited to a determination of

whether the board has exceeded its jurisdiction or has acted illegally, arbitrarily, or fraudulently.

A common-law writ of certiorari is an extraordinary judicial remedy. Robinson v.

Traughber, 13 S.W.3d 361, 364 (Tenn. Ct. App. 1999); Fite v. Tennessee Bd. of Paroles, 925

S.W.2d 543, 544 (Tenn. Ct. App. 1996). It is not available as a matter of right, Boyce v. Williams,

1

The pro se brief was signed only by Mr. Tharpe, leading the Department to argue that Mr. Willis “presented

no issues fo r review by this Court.” Upon exam ination, it is apparent that the brief was filed only on beh alf of Mr.

Tharpe. Seemingly, Mr. Willis aban don ed his appeal, altho ugh he w as no t notified of po tential dismissal for fa ilure to

file a brief. The issues raised in the brief filed by Mr. Tharpe are the same issues as those raised by both Mr. Tharpe

and Mr. Willis in their joint petition for writ o f certiorari and their notice of appe al. Because we find Mr. Tharpe is not

entitled to relief on those facts and issues, we need not determine whether Mr. Willis waived his right to relief.

How ever, because we interpret the record as indicating Mr. Willis’s abandonment of his appeal, some adjustment of

the allocation of costs on appeal is made at the conclusion of this opinion.

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215 Tenn. 704, 713-14, 389 S.W.2d 272, 277 (1965); Yokley v. State of Tenn., 632 S.W.2d 123, 127

(Tenn. Ct. App. 1981), but rather is addressed to the trial court’s discretion. Blackmon v. Tennessee

Bd. of Paroles, 29 S.W.3d 875, 878 (Tenn. Ct. App. 2000). Accordingly, decisions to grant or deny

a common-law writ of certiorari are reviewed using the familiar “abuse of discretion” standard.

Robinson, 13 S.W.3d at 364. Under this standard, a reviewing court should not reverse a trial court’s

discretionary decision unless it is based on a misapplication of controlling legal principles or a

clearly erroneous assessment of the evidence, Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn.

Ct. App. 1999), or unless it affirmatively appears that the trial court’s decision was against logic or

reasoning, and caused an injustice or injury to the complaining party. Marcus v. Marcus, 993

S.W.2d 596, 601 (Tenn. 1999); Douglas v. Estate of Robertson, 876 S.W.2d 95, 97 (Tenn. 1994).

The scope of review under a common-law writ of certiorari is extremely limited. Courts may

not (1) inquire into the intrinsic correctness of the lower tribunal’s decision, Arnold v. Tennessee Bd.

of Paroles, 956 S.W.2d 478, 480 (Tenn. 1997); Powell v. Parole Eligibility Rev. Bd., 879 S.W.2d

871, 873 (Tenn. Ct. App. 1994), (2) reweigh the evidence, Watts v. Civil Serv. Bd. for Colum., 606

S.W.2d 274, 277 (Tenn. 1980); Hoover, Inc. v. Metro Bd. of Zoning App., 924 S.W.2d 900, 904

(Tenn. Ct. App. 1996), or (3) substitute their judgment for that of the lower tribunal. 421 Corp. v.

Metropolitan Gov’t of Nashville, 36 S.W.3d 469, 474 (Tenn. Ct. App. 2000). Rather, the writ

permits the courts to examine the lower tribunal’s decision to determine whether the tribunal

exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily. Turner v. Tennessee Bd. of

Paroles, 993 S.W.2d 78, 80 (Tenn. Ct. App. 1999); Daniels v. Traughber, 984 S.W.2d 918, 924

(Tenn. Ct. App. 1998).

The writ itself is an order issued by a superior court to compel an inferior tribunal to send up

its record for review. In order to warrant issuance of the writ, the petition must sufficiently allege

that the inferior tribunal acted outside its jurisdiction, illegally, fraudulently, or arbitrarily. Because

the petition merely seeks the filing of the record and judicial review of the proceedings and decision,

a motion to dismiss the writ at this stage can only be granted if the petition fails to make any

allegations which justify review of the record under the common-law writ of certiorari standards.

In determining the sufficiency of the allegations, conclusory allegations will not entitle a petitioner

to the writ, and “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, 879 S.W.2d at 873.

Because the Department chose to respond to the petition by filing a motion to dismiss, and

because the motion was granted before the writ was issued, the Department did not file the record

of the disciplinary proceedings. We must review the dismissal of the petition under the standards

applicable to dismissal under Tenn. R. Civ. P. 12.02(6). Such a motion tests only the legal

sufficiency of the complaint, not the strength of the petitioner’s proof. Cook v. Spinnaker’s of

Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). The basis for the motion is that the allegations

contained in the complaint, considered alone and taken as true, are insufficient to constitute a cause

of action. Id. In resolving the issues in this appeal, we are required to construe the complaint

liberally in the plaintiff’s favor and take the allegations of the complaint as true. Bell v. Icard,

Merrill, Cullins, Timm, Furen & Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999). Our standard

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of review on appeal from a trial court’s ruling on a motion to dismiss is de novo, with no

presumption of correctness as to the trial court’s legal conclusions. Stein v. Davidson Hotel Co., 945

S.W.2d 714, 716 (Tenn. 1997).

The petition does not allege that Mr. Willis and Mr. Tharpe were denied a hearing on the

charges. To the contrary, in their petition, Mr. Willis and Mr. Tharpe alleged that they were given

hearings before the disciplinary board on the charge of attempted escape. They alleged that “the

facts at the hearing showed that a pair of ‘pliers’ were discovered in a fan in a cell that Willis shared

with Tharpe.” The reporting officer testified at the hearing as did the maintenance employee in

whose tool belt the pliers were last seen. Mr. Tharpe also testified. The petition alleged that the

petitioners were given a statement of the evidence and reasons for the board’s decision, in a

“Disciplinary Hearing Summary,” which is not included in the record. Although they acknowledged

receipt of the summary, they argued that the summary demonstrates that the finding of guilt was

based on no actual evidence.

The petition also alleged that the notice given them of the charges was inadequate because

it did not cite a specific provision of statute or departmental rule that they allegedly violated:

Although Petitioners were charged for ‘Attempted escape,’ there was no specific

statutory provision of Tennessee law or Tennessee Department of Correction

(TDOC) Policy alleged or cited in the disciplinary reports in order to properly place

Petitioners on notice of the specific provision of law or regulations they allegedly

violated. Because of this, Petitioners were not provided with adequate notice against

them.

The crux of the petitioners’ argument was that the evidence was insufficient to support a

finding of attempted escape because: (1) there was no evidence that the pliers were used in any way

to create an escape route from their cell; (2) there was no evidence that established they took the

pliers; and (3) the reporting officer relied on information from a confidential informant, apparently

leading him to conduct the search. The petitioners alleged that they requested log books and the

testimony of the control officer regarding the tracking of the pliers, but were denied access to such

information, which, they argued, could have been exculpatory. With regard to the confidential

informant, the complaint appears to be that the confidential informant’s information led to the

discovery of the pliers and the informant “had every motive to set Petitioners up with the pliers and

then concoct the alleged ‘attempted escape’ story.”

Thus, although the petitioners claimed due process violations, much of their argument is

related to the sufficiency of the evidence against them. Mr. Tharpe simply contends that the

presence of the pliers in a fan in his cell is not sufficient evidence to support a finding of “attempted

escape.” As explained above, under the common-law writ of certiorari, courts cannot inquire into

the correctness of the disciplinary board’s decision finding the petitioners guilty of attempted escape.

To the extent the petitioners are asking this court to reweigh the sufficiency of the evidence

presented to the board, we are not authorized to do so under the common-law writ of certiorari.

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Cooper v. Williamson County Bd. of Educ., 746 S.W.2d 176, 179 (Tenn. 1987); Hoover, Inc., 924

S.W.2d at 904. The writ is only justified if there is no material evidence in the record to support the

finding of the lower tribunal. Hoover, Inc., 924 S.W.2d at 904-05. Due process only requires that

“some evidence” support the disciplinary board’s decision. Superintendent v. Hill, 472 U.S. 445,

455, 105 S. Ct. 2768, 2773, 86 L. Ed. 2d 356, 365 (1985). “The fundamental fairness guaranteed

by the Due Process Clause does not require courts to set aside decisions of prison administrators that

have some basis in fact.” Id., 472 U.S. at 455, 105 S. Ct. at 2774, 86 L. Ed. 2d at 366. Taking the

facts alleged in the petition for writ of certiorari as true, we must conclude that there was some

evidence presented to the board to support its determination of guilt.

However, with regard to the allegations that the disciplinary board’s procedure denied the

petitioners due process, such allegations are the equivalent of a claim that the board acted arbitrarily

and illegally. Davis v. Campbell, No. 01-A-01-9712-CH-00755, 1998 Tenn. App. LEXIS 784, at

*1 (Tenn. Ct. App. Nov. 25, 1998) (no Tenn. R. App. P. 11 application filed). The common-law writ

of certiorari is the appropriate procedural tool available to correct the “essential illegality” of a denial

of procedural rights guaranteed by the United States Constitution. Seals v. Bowlen, No. M1999-

00997-COA-R3-CV, 2001 Tenn. App. LEXIS 847, at *17 (Tenn. Ct. App. July 26, 2001) (no Tenn.

R. App. P. 11 application filed) (citing State v. Womack, 591 S.W.2d 437, 442 (Tenn. Ct. App.

1979)).

II. Due Process

The Department’s motion to dismiss takes the position that even if everything the petitioners

alleged in their petition is true, they have still failed to state a claim for relief because they are not

entitled to the due process protections they assert they were denied.

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.

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 “liberty” or “property” within the meaning of the Due Process

Clause; and, if so (2) what process is due in the circumstances. Board of Regents v. Roth, 408 U.S.

564, 571-73, 92 S. Ct. 2701, 2706-07, 33 L. Ed. 2d 548, 557-59 (1972). Deprivation of an interest

which is neither “liberty” nor “property” does not trigger the procedural safeguards of the Due

Process Clause.

The United States Supreme Court has identified the minimum procedural requirements of

prison disciplinary hearings that involve deprivation of a liberty interest. In Wolff v. McDonnell, 418

U.S. 539, 94 S. Ct. 2963, 43 L. Ed. 2d 935 (1974), having found a liberty interest in accumulated

good time credits created by state statute, the Court nonetheless held that “prison disciplinary

proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in

such proceedings does not apply.” Id. 418 U.S. at 556, 94 S. Ct. at 2975, 41 L. Ed. 2d at 951 (citing

Morrissey v. Brewer, 408 U.S. 471, 488, 92 S. Ct. 2593, 2603, 53 L. Ed. 2d 484, 498 (1972)).

Recognizing that the unique requirements of prison life necessarily involve the loss by prisoners of

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many rights afforded to unincarcerated citizens, the Court established the minimal constitutional

requirements that must be met in prison disciplinary proceedings where a protected liberty interest

is implicated. In such situations, a prisoner is minimally entitled to prior written notice of the

charges, an opportunity to present witnesses when not hazardous to institutional safety and goals,

an impartial decision maker, and a written statement as to the evidence relied on and the reason for

the action taken. Wolff, 418 U.S. at 564-66, 94 S. Ct. at 2978-80, 41 L. Ed. 2d at 955-57.

Without the implication of a liberty interest, however, even the minimal safeguards set out

in Wolff are not required. Sandin, 515 U.S. at 483-84, 115 S. Ct. at 2300, 1321 L. Ed. 2d at 429

(holding that because no liberty interest existed in freedom from punitive segregation, the procedural

requirements of Wolff did not apply); Olim v. Wakinekona, 461 U.S. 238, 103 S. Ct. 1741, 75 L. Ed.

2d 813 (1983) (concluding that where there was no liberty interest, there was no right to an impartial

decisionmaker); Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 101 S. Ct. 2460, 69 L. Ed.

2d 158 (1981) (holding that a prisoner who was denied a pardon which would have made him

eligible for parole had no liberty interest and, therefore, was not entitled to statement of the reasons

for denial of the pardon).

The primary focus of the Wolff opinion was the second part of the two-part due process

analysis: identifying the process that is due in a particular situation. The United States Supreme

Court later recognized that the emphasis in Wolff was on the “balancing of prison management

concerns with prisoners’ liberty in determining the amount of process due” and not on the definition

of liberty interests protected by the Due Process Clause. Sandin, 515 U.S. at 478, 115 S. Ct. at 2297,

132 L. Ed. 2d at 425-26. The discussion of liberty interests in Wolff, however, included a

determination that the Due Process Clause itself did not create a liberty interest in accumulated

credits for good behavior but that a state statute created such an interest in a shortened prison

sentence because it made such credits revocable only if the prisoner was guilty of serious

misconduct. Wolff, 418 U.S. at 557, 94 S. Ct. at 2975, 41 L. Ed. 2d at 951.

Subsequent to Wolff, the Court took the opportunity to treat more fully the issue of protected

liberty interests in the prison context. Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed.

2d 451 (1976). In Meachum, the Court considered whether transfer to a different prison with less

favorable conditions could only be accomplished by procedure which complied with Wolff. The

Court specifically rejected “the notion that any grievous loss visited upon a person by the State is

sufficient to invoke the procedural protections of the Due Process Clause,” citing Roth as an example

of a situation where a loss of great substance occurred but was not constitutionally protected.

Meachum v. Fano, 427 U.S. at 224, 96 S. Ct. at 2538, 49 L. Ed. 2d at 458. The Court continued:

Similarly, we cannot agree that any change in the conditions of confinement having

a substantial adverse impact on the prisoner involved is sufficient to invoke the

protections of the Due Process Clause. The Due Process Clause by its own force

forbids the State from convicting any person of a crime and depriving him of his

liberty without complying fully with the requirements of the Clause. But given a

valid conviction, the criminal defendant has been constitutionally deprived of his

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liberty to the extent that the State may confine him and subject him to the rules of its

prison so long as the conditions of confinement do not otherwise violate the

Constitution.

Id.

The court found that confinement within any of the State’s prisons was “within the normal

limits or range of custody which the conviction has authorized the State to impose.” Id. 427 U.S.

at 225, 96 S. Ct. at 2538, 49 L. Ed. 2d at 459. Consequently, there was no liberty interest arising

from the Due Process Clause itself which compelled Wolff’s procedural safeguards prior to a

transfer.

In Meachum, as in Wolff, the Court recognized that states may create interests which trigger

the procedural protections of the Due Process Clause, pointing out that the liberty interest in Wolff

had its roots in state law.2 Meachum, 427 U.S. at 226, 96 S. Ct. at 2539, 49 L. Ed. 2d at 460. For

the next two decades, this state-law source of liberty interests was the basis of the Court’s

jurisprudence regarding due process in prison settings. The Supreme Court’s methodology for

determining whether a liberty interest existed involved combing state statutes and prison regulations

for mandatory language or substantive prerequisites to the challenged action. See, e.g., Kentucky

Dep’t. of Corr. v. Thompson, 490 U.S. 454, 464-65, 109 S. Ct. 1904, 1910-11, 104 L. Ed. 2d 506,

517-18 (1989) (holding that the wording of visitation rules did not create an expectation that

prisoners could enforce them against prison officials, so no liberty interest was created and no

procedures needed to accompany the suspension of visitation privileges); Olim, 461 U.S. at 249-51,

103 S. Ct. at 1747-48, 75 L. Ed. 2d at 822-24 (holding that discretionary wording in a regulation

authorized the transfer of a prisoner without due process); Board of Pardons v. Allen, 482 U.S. 369,

107 S. Ct. 2415, 96 L. Ed. 2d 303 (1987) (holding that mandatory language in a parole statute

triggered a liberty interest and, therefore, inmate was entitled to procedural protection);3 Dumschat,

452 U.S. at 466, 101 S. Ct. at 2465, 69 L. Ed. 2d at 166 (holding that a statute which gave a board

unlimited discretion did not create a liberty interest); Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979) (holding that a state parole statute

created a legitimate expectation of release, thus creating a liberty interest subject to due process

protections).

The courts continued to struggle with determinations of whether state law created protected

interests until, in 1995, the Supreme Court abandoned the prior language-driven methodology

because that methodology had shifted the focus of the inquiry away from the nature of the

2

In Meachum, the Court determined that state law gave prison officials discretion in the assignm ent of prisoners

to particu lar priso ns, gave prisoners no right to remain in a particular prison, and did not predicate transfer on

misc ond uct or othe r specific eve nts. Co nseq uen tly, the C ourt foun d no state-cre ated lib erty interest.

3

In San din the court later described the Allen holding as a triumph of form over substance, 515 U.S. at 484,

115 S. Ct. at 2300, 132 L. Ed. 2d at 430.

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deprivation. Sandin, 515 U.S. at 480-82, 115 S. Ct. at 2298-99, 132 L. Ed. 2d at 426-28. Such

analysis “strayed from the real concerns undergirding the liberty protected by the Due Process

Clause.” Id. 515 U.S. at 483, 115 S. Ct. at 2300, 132 L. Ed. 2d at 429. In Sandin, the Court

determined it was time to return “to the due process principles we believe were correctly established

in Wolff and Meachum.” Id.

While recognizing that states may, under certain circumstances, such as that presented in

Wolff, create liberty interests, the Court found:

But these interests will be generally limited to freedom from restraint which, while

not exceeding the sentence in such an unexpected manner as to give rise to protection

by the Due Process Clause of its own force, . . . nonetheless imposes atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life.

Id. 515 U.S. at 484, 715 S. Ct. at 2300, 132 L. Ed. 2d at 429 (citations omitted).

Although the Court’s shift in how it viewed state-created liberty interests in the prison

context was the most significant holding of Sandin, the holdings of the Court that related to the

scope of liberty interests created by the Due Process Clause are also relevant. That the Court

intended to visit that issue is clear from its statement that Sandin presented the first opportunity for

the Court to address the issue of whether disciplinary confinement of inmates itself implicates

constitutional liberty interests. Id. 515 U.S. at 486, 115 S. Ct. at 2301, 132 L. Ed. 2d at 431-32. It

had previously determined in Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 6757

(1983), that the Due Process Clause, standing alone, did not confer a liberty interest to avoid

administrative segregation, by finding that there was no constitutional liberty interest in freedom

from state action taken “within the sentence imposed.” Id. 459 U.S. at 468, 103 S. Ct. at 869, 74 L.

Ed. 2d at 685. In Hewitt, the Court recognized that prisoners retain only “the most basic liberty

interests” and determined that remaining in the general population was not one of those basic

interests. Id. 459 U.S. at 467-68, 103 S. Ct. at 869, 74 L. Ed. 2d at 685. The Court explained that

because “inmates should reasonably anticipate receiving [administrative segregation] at some point

in their incarceration,” the Due Process Clause alone did not create a liberty interest. Id. 459 U.S.

at 468, 103 S. Ct. at 869, 74 L. Ed. 2d at 685.

In Sandin, Mr. Conner was sanctioned for a disciplinary infraction by confinement in

punitive segregation for thirty days. The Court found no substantive difference between the

conditions of disciplinary segregation and the conditions of administrative segregation or protective

custody. The Court concluded that because the prisoner’s confinement “did not exceed similar, but

totally discretionary confinement in either duration or degree of restriction” the punitive segregation

“did not work a major disruption in his environment.” Sandin, 515 U.S. at 486, 115 S. Ct. at 2301,

132 L. Ed. 2d at 431. This analysis was part of the Court’s return to examining the nature of the

interest at stake, pursuant to its earlier holdings in Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401,

51 L. Ed. 2d 711 (1977) and Meachum, 427 U.S. at 224, 96 S. Ct. at 2538, 49 L. Ed. 2d at 459

(citing Roth, 408 U.S. at 570-71, 92 S. Ct. at 2705, 33 L. Ed. 2d at 556). Based on its findings that:

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(1) Mr. Conner’s disciplinary segregation did not present an atypical, significant deprivation and (2)

the sanctions would not inevitably affect the duration of his sentence, the court held “Neither the

Hawaii prison regulations, nor the Due Process Clause itself, afforded Conner a protected liberty

interest that would entitle him to the procedural protections set forth in Wolff.” Sandin, 515 U.S. at

487, 115 S. Ct. at 2302, 132 L. Ed. 2d at 432.4

It is clear from statements of dissenting justices in Sandin that the majority opinion held that

the Due Process Clause of the United States Constitution provided no basis for assertions of due

process violations in prison disciplinary proceedings that result in sanctions that are within the

expected, ordinary deprivations incident to prison life.5 The Court reiterated its prior holdings that

disciplinary actions that do not extend the duration of a prisoner’s sentence and are within the

original sentence do not trigger due process rights because they are generally to be expected in the

context of prison life.

The punishment of incarcerated prisoners . . . effectuates prison management and

prisoner rehabilitative goals. Admittedly, prisoners do not shed all constitutional

rights at the prison gate, but “[l]awful incarceration brings about the necessary

withdrawal or limitation of many privileges and rights, a retraction justified by the

considerations underlying our penal system.” Discipline by prison officials in

response to a wide range of misconduct falls within the expected parameters of the

sentence imposed by a court of law.

Id. 515 U. S. at 485, 115 S. Ct. at 2301, 132 L. Ed. 2d at 430-31 (citations omitted).

4

This opinion’s discussion of Sandin’s holding regarding liberty interests created by the constitution itself

addresses the stateme nts in the se parate con curring o pinio n in Fran klin v. Tenn essee Dept. of Corr., No. M2001-00279-

COA-R3-CV, 2001 Tenn. App. LEXIS 839 (Tenn. Ct. App. Nov. 8, 2001) (no Tenn. R. App. P. 11 application filed)

that San din addressed only state law created liberty interests and that prisoners are entitled to the minimum procedural

requ irem ents established in Wo lff “regard less of w hether they are facing pu nishm ent that is atyp ical and sign ificant in

relation to the ordinary aspects of prison life.” Id. 2001 Ten n. App. LE XIS 83 9, at *22 (Koch J., concurring).

5

Justice Ginsburg, in her dissent, stated, “Unlike the Court, I conclude that Conner had a liberty interest,

protected by the Fourteenth A men dme nt’s Du e Pro cess C lause, in avo iding the co nfinem ent he end ured .” San din, 515

U.S. at 488, 115 S. Ct. at 2302, 132 L. Ed. 2d at 433 (Ginsburg, J., dissenting). Similarly, Justice Breyer’s dissent makes

it clear that he interpreted the majority opinion as ruling that Due Process protections did not apply to M r. Conner’s

pun ishm ent as a constitutional matter.

The specific question in this case is whether a particular punishme nt that, among other thing s,

segregates an inma te from the general prison population for violating a disciplinary rule deprives the

inm ate of “liberty” within the terms of the Fourteenth Amendm ent’s Due Process Clause. The

majority, asking whether that punishment “imposes atypical and significant hardship on the inm ate

in relation to the ordinary incidents of prison life” concludes that it does not do so.

Id. 515 U.S. at 492, 115 S. Ct. at 2304, 132 L. Ed . 2d at 434 (Breyer, J., dissenting).

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While the Court did not preclude the possibility of the Due Process Clause giving rise on its

own to a protected liberty interest, it made it clear that those situations would be rare. In Meachum,

the Court had stated that such an interest existed in avoiding punishment that went beyond the

normal scope of that authorized by a criminal conviction. Meachum, 427 U.S. at 225, 96 S. Ct. at

2538, 49 L. Ed. 2d at 459. In Sandin, the court indicated that it had only found the Due Process

Clause itself to have created a liberty interest in prisoners in two cases: Vitek v. Jones, 445 U.S. 480,

100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980) (involving the transfer of a prisoner to a mental institution)

and Washington v. Harper, 494 U.S. 213, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990) (involving the

administration of psychotropic drugs to a prisoner). Sandin, 515 U.S. at 479 n.4, 115 S. Ct. at 2297

n.4, 132 L. Ed. 2d at 426 n.4. In Vitek, the Court’s finding of a liberty interest originating in the Due

Process Clause itself was based upon its conclusion that the transfer of a prisoner to a mental

hospital was not “within the range of confinement justified by the imposition of a prison sentence”

because the consequences of the transfer would result in conditions that were “qualitatively

different” from the conditions of confinement in a penal institution expected after conviction. Vitek,

445 U.S. at 493-94, 100 S. Ct. at 1264, 63 L. Ed. 2d at 565. On the other hand, Mr. Conner’s

disciplinary segregation was not a “dramatic departure” from ordinary prison confinement and was

within the expected parameters of a criminal sentence. Sandin, 515 U.S. at 485-86, 115 S. Ct. at

2301, 132 L. Ed. 2d at 430-31.

The United States Court of Appeals for the Sixth Circuit has found that, under Sandin, a

prison disciplinary proceeding does not give rise to a protected Fourteenth Amendment liberty

interest unless it affects the duration of the prisoner’s confinement or the restrictions impose an

atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir. 1997). An inmate “has no liberty interest in remaining

free of disciplinary segregation because such segregation does not impose an atypical hardship . .

. .” McKinley v. Bowlen, 8 Fed. App. 488, 492, 2001 U.S. App. LEXIS 8743, at *6 (6th Cir. 2001)

(citing Sandin and Mackey). Absent allegations of such an atypical hardship, a prisoner cannot

sustain his claim. Jones v. Baker, 155 F.3d 810, 812-13 (6th Cir. 1998).

Thus, because “[l]awful incarceration brings about the necessary withdrawal or limitation

of many privileges and rights,” Jones v. North Carolina Prisoners Labor Union, 433 U.S. 119, 125,

97 S. Ct. 2532, 2537, 53 L. Ed. 2d 629, 638 (1977) (citing Price v. Johnston, 334 U.S. 266, 285, 68

S. Ct. 1049, 1060, 92 L. Ed. 1356, 1369 (1948)), the Due Process Clause itself does not give rise to

a protected liberty interest in freedom from deprivations which are an expected part of incarceration

after conviction. In particular, disciplinary segregation for brief periods6 is within the expected

parameters of such incarceration and does not implicate a constitutionally created liberty interest.

A state-law-based liberty interest can only be created where the deprivation imposes an atypical and

significant hardship in relation to the ordinary incidents of prison life. Sandin, 515 U.S. at 484, 715

S. Ct. at 2300, 132 L. Ed. 2d at 429. Absent those factors, no liberty interest exists and the

6

In San din, the Sup rem e Co urt de term ined that thirty days was a brief perio d. San din, 515 U.S. at 483-85, 115

S. Ct. at 2300-01, 132 L. Ed. 2d at 429-31.

-10-

procedural requirements of Due Process do not apply.7 Absent allegations of those factors, in terms

of the atypicality and significance of the deprivation due to duration or conditions, no claim of due

process denial has been stated.

In the case before us, the petition simply alleged that the sanctions given to Mr. Tharpe as

a result of the conviction for attempted escape included punitive segregation, involuntary

administrative segregation, and a five dollar ($5.00) fine.8 There was no allegation as to the duration

of the segregation, the conditions of segregated confinement, or the atypicality of either in

comparison to the ordinary incidents of prison life.9 Because segregated confinement in and of itself

does not present the type of atypical significant deprivation that triggers procedural protections,

Sandin, 515 U.S. at 483-85, 115 S. Ct. at 2300-01, 132 L. Ed. 2d at 429-31, a claim based solely on

an allegation of such confinement does not trigger an analysis of the procedural protections afforded.

Without more, the petition fails to state a claim upon which relief can be granted.

III. State Law Cause of Action

The dissent herein states that our reliance on Sandin is misplaced. While we certainly agree

that Sandin was a § 1983 claim, we disagree that the Sandin holding is inapplicable herein. Sandin

defines the nature of the liberty interest to which due process attaches. Consequently, it is relevant

to an analysis of any claim of deprivation of constitutional due process in a prison disciplinary

setting, regardless of the procedural vehicle used to bring that claim. Herein, Mr. Tharpe claimed

a deprivation of due process rights guaranteed to him by the United States Constitution. In order to

address the claim actually raised by the petitioners herein, it is necessary to discuss due process in

the context of prison disciplinary proceedings. Thus, reliance on Sandin seems, to us, unavoidable.

7

The Second Circuit has adopted an approach that requires factual findings to determine the actual conditions

of confinement in segregation or restrictive housing and the actual duration of that confinement as a prerequ isite to

determination of the legal question of whether the conditions and duration constitute an atypical and significant

hardship. In Colon v. How ard, 215 F.3d 227 (2d Cir. 2000), that court held that confinement of three hundred five days

under standard segregated housing conditions in the prison at issue w as a sufficient departure from the ordinary in ciden ts

of prison life to constitute an atypical hardship as a matter of law. In Colon, the court recognized that it had p revio usly

held that a similar confinement of on e hundred one days d id no t constitute an atypical and sign ificant hard ship in Sea ly

v. Giltner, 197 F.3d 57 8, 589-90 (2 d Cir. 1999). In Colon, however, the court reserved the possibility that upon a m ore

fully developed record, confinement shorter than one hundred one days could be found to be atypical and significant.

Thu s, the Second C ircuit’s approach req uires a fact specific inquiry to determine wh ether a liberty interest exists which

triggers pro cedural protection s.

8

The Department did not offer any clarifying information about the duration of the seg regation, but we note

that TDOC Policy #502.02 on disciplinary punishment guidelines appears to set the maximum amount of punitive

segre gation available as a san ction for a d isciplina ry infraction at thirty days, ab sent other sp ecified circumstance s.

9

The brief submitted by M r. Tharpe on appeal, however, alleges that the sanctions have imposed atypical and

significant hardships on him including segreg ation for an extended pe riod and other con sequences of the disciplinary

infraction. How ever, no ne of the se allegations were presented to the trial court and, thus, are not before us. This court

can only consider su ch m atters as w ere brought to the atten tion o f the trial court.

-11-

We interpret the dissent as holding that failure to follow TDOC procedural policies can create

a cause of action under the common-law writ of certiorari in certain circumstances,10 even though

due process is not implicated. The disciplinary policies are not required to be promulgated as rules

under the Administrative Procedures Act, Mandela, 978 S.W.2d at 534, and thus can be changed by

the Department alone.11 “[T]he legislature has provided the TDOC considerable deference and broad

discretionary powers to enable TDOC to manage its tremendous responsibilities. . . .This broad grant

of legislative discretion necessarily includes the power to establish policies and procedures for

handling disciplinary matters.” Id. The dissent lists several TDOC policies which it finds Mr.

Tharpe alleged were violated. Each of the specific policies, however, is grounded in procedural due

process. Sandin precludes Mr. Tharpe from sustaining a due process claim, yet the dissent would

find a cause of action based in a state statute establishing limited review of a lower tribunal’s

decision based upon the same allegations. We are unable to agree that such allegations support

issuance of a writ of certiorari.

We agree with the dissent that the common-law writ of certiorari is available to contest

decisions of lower tribunals, including administrative boards, on grounds other than constitutional

violations, and have recently made that point in prison disciplinary board challenges. See Ahkeen

v. Campbell, No. M2000-02411-COA-R3-CV, 2001 Tenn. App. LEXIS 815, at *14-15 (Tenn. Ct.

App. Nov. 2, 2001) (no Tenn. R. App. P. 11 application filed); Livingston v. State, No. M1999-

0011138-COA-R3-CV, 2001 Tenn. App. LEXIS 475, at *9-13 (Tenn. Ct. App. July 5, 2001) (no

Tenn. R. App. P. 11 application filed).

The statutory grounds for grant of the writ are “where an inferior tribunal, board, or officer

exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally.” Tenn.

Code Ann. § 27-8-101. Courts have long recognized grounds for grant of the writ “if the board has

exceeded its jurisdiction, or has otherwise acted unlawfully, arbitrarily or fraudulently.” Blackmon,

29 S.W.3d at 878; Petition of Gant, 937 S.W.2d 841, 844-45 (Tenn. 1996); Powell, 879 S.W.2d at

873; McCallen v. City of Memphis, 786 S.W.2d 633, 638 (Tenn. 1990).

An allegation of denial of due process, such as that made herein, or other constitutional

violation, is an allegation that the board acted illegally. Livingston, 2001 Tenn. App. LEXIS 475,

at *29; Davis, 1998 Tenn. App. LEXIS 784, at * 3-4; Maney v. Tennessee Bd. of Paroles, No.

01A01-9710-CV-00562, 1998 Tenn. App. LEXIS 727, at *6 (Tenn. Ct. App. Oct. 30, 1998) (no

Tenn. R. App. P. 11 application filed); Williams v. Tennessee Dept. of Corr., No. 02A01-9503-CV-

00046, 1995 Tenn. App. LEXIS 640, at *4-5 (Tenn. Ct. App. Oct. 2, 1995) (no Tenn. R. App. P. 11

application filed).

10

These circumstance s are if the petitioner alleges that failure to follow TDO C disciplinary policies affected

the disposition of the proceeding to the priso ner’s preju dice.

11

Wh ere a liberty interest exists, such as where the sanction imposes an atypical and significant hardship, an

inm ate mu st be given due process. The procedural policies ensure su ch protection, but the min imal requ irem ents

established in Wo lff must be met in such cases, with or without written policies guaranteeing them.

-12-

One of the other ways in which a board or commission may act illegally or arbitrarily is to

make a decision without any material evidence to support the decision. Davison v. Carr, 659

S.W.2d 361, 363 (Tenn. 1983); Hoover v. Metropolitan Bd. of Hous. App., 936 S.W.2d (Tenn. Ct.

App. 1996); Metropolitan Air Research Testing Auth., Inc. v. Metropolitan Gov’t. of Nashville and

Davidson County, 842 S.W.2d 611, 619 (Tenn. Ct. App. 1992). Absent some material evidence, the

petitioner is entitled to relief under the common-law writ of certiorari. The requirement of some

material evidence to support the decision of the lower tribunal has been treated analytically as (1)

a test for “illegality,” see, e.g., Hoover, Inc., 924 S.W.2d at 904-05 (determining that there is no

material evidence to support the decision requires the reviewing the court to “conclude that the

administrative body acted illegally”); (2) as a standard for “arbitrary” action, see, e.g., South v.

Tennessee Bd. of Paroles, 946 S.W.2d 310, 311 (Tenn. Ct. App. 1996) (stating that “One useful

criterion for determining whether a decision can be considered to be arbitrary is whether or not it has

a rational basis. Perhaps another might be whether it is supported by any substantial and material

evidence in the record.”); and (3) as a separate basis for grant of relief under the common-law writ

of certiorari, see, e.g., Lions Head Homeowners’ Ass’n. v. Metropolitan Bd. of Zoning App., 968

S.W.2d 296, 303 (Tenn. Ct. App. 1997) (holding that persons seeking relief under common-law writ

of certiorari have the burden of demonstrating the board “exceeded its jurisdiction, acted illegally,

arbitrarily, or without material evidence to support its decision”). While it is not necessary to

precisely categorize the appropriate grounds for such a challenge, we think it is clear that a decision

that is not based on some material evidence is subject to judicial review and reversal under the writ.12

However, any such judicial review is limited to finding some evidentiary basis, and “neither

the trial court nor this court determines any disputed question of fact or weighs any evidence.”

Gallatin Housing Auth. v. City Council, 868 S.W.2d 278, 280 (Tenn. Ct. App. 1993). The Tennessee

12

In Wo lff v. McDo nne ll, the United States Supreme Court determined that one of the minimal constitutional

requ irem ents applicab le to prison d isciplinary pro ceedings is a written statement of the evidence relied on and the reason

for the action tak en. Wo lff, 418 U.S. at 564 -66, 94 S . Ct. at 2978-80, 41 L .Ed. 2d at 955-57. In Sup erinten den t v. Hill,

the Court determined that “the minimum requirements of procedural due process,” where due process attaches, include

a requirement that the findings of a prison disciplinary board be supported by so me evidence in the record. Hill, 472

U.S. at 454, 105 S. Ct. at 2773, 86 L. Ed. 2d at 364. The court established the standard that due process is met “if there

was som e evid ence from wh ich the con clusion of the ad min istrative trib una l could be deduced.” Id. The Court,

declining to adopt a more stringent evidentiary standard as a constitutional requirement, stated:

Ascertaining whether this standard is satisfied does not require examination of the entire record,

independent assessment of the credibility of witnesses, or weighing o f the evidence. Instead, the

relevant question is whether there is any evidence in the record that could support the conclusion

reached by the d isciplinary bo ard. . . .The fun dam ental fairness guaranteed by the Due Process C lause

doe s not re quire cou rts to set asid e dec isions o f prison admin istrators th at hav e som e basis in fact.

Id. As discussed earlier in this opinion, under San din, due process is not implicated by all actions taken by a prison

disciplinary board, and we have determined that the deprivations alleged by M r. Tharpe are not the type that trigger a

due process analysis. Consequently, Hill doe s not d irectly apply either since it is premised on the existence of a protected

liberty interest. Nonetheless, because a board’s decision is subject to judicial review under state law upon a sufficiently

definite allegation that no evidence supports the decision, the Hill standard provides some guidance on how the scope

of such a review m ight be defined in the co ntext of prison disciplinary boards.

-13-

Supreme Court has explained, “The scope of review under the common-law writ does not ordinarily

extend to a redetermination of the facts found by the administrative body.” Cooper v. Williamson

County Bd. of Educ., 746 S.W.2d 176, 179 (Tenn. 1987). Further:

[T]he writ has never been employed to inquire into the correctness of the judgment

rendered where the court had jurisdiction, and was therefore competent. Hence it has

been held that the supervisory jurisdiction of the court on a certiorari . . . cannot be

exercised to review the judgment as to its intrinsic correctness, either on the law or

on the facts of the case.

Hoover Motor Express Co. v. Railroad and Pub. Util. Comm’n, 195 Tenn. 593, 601, 261 S.W.2d

233, 236 (citations omitted).13

Under the common-law writ, courts may examine a lower tribunal’s decision in order to

determine if it is arbitrary or capricious. As a general proposition, the decision of an administrative

board is considered to be arbitrary if it lacks a rational basis. Mobilcomm of Tenn. v. Tennessee Pub.

Serv. Comm’n, 876 S.W.2d 101, 104 (Tenn. Ct. App. 1993). In Jackson Mobilphone Co. v. Tennessee

Pub. Serv. Comm’n, 876 S.W.2d 106 (Tenn. Ct. App. 1993), this court discussed the standard for

determining whether a decision is arbitrary, stating that an agency decision, not supported by

substantial and material evidence in the record, is arbitrary and capricious and, even where adequate

evidence is found in the record, an agency’s decision may still be arbitrary and capricious if caused

by a clear error in judgment or if the decision disregards the facts or circumstances of the case without

some basis. Id. at 110-11 (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S.

281, 284, 95 S. Ct. 438, 441, 42 L. Ed. 2d 447, 455 (1974)).14 Further, arbitrariness conveys the sense

that a decision is not based on any course of reasoning or exercise of judgment, but is based solely

on one’s will. State ex rel. Nixon v. McCanless, 176 Tenn. 352, 354, 141 S.W.2d 885, 886 (1940).

Arbitrary has also been characterized as “without fair, solid, and substantial cause; and without reason

given,” Waller v. Skelton, 186 Tenn. 433, 445, 211 S.W.2d 445, 450 (1948), and “willful and

unreasoning action, without consideration and in disregard of the facts or circumstances of the case,

or the result of an unconsidered willful and irrational choice of conduct.” Wright v. Tennessee Bd.

of Dispensing Opticians, 759 S.W.2d 929, 932 (Tenn. Ct. App. 1988); see also Cupp v. Kimsey, No.

13

As discussed earlier in this opinion, Mr. Tharpe’s arguments are largely a disagreement with the conclusion

reached by the disciplinary board that he com mitted the offen se of attempted escap e. His p etition and th e docum ents

that he submitted therewith show that a pair of pliers was found in his cell. He asserts that someone else could have

planted the pliers to frame him and his cellmate. He testified at the hearing. We interpret his argument as asking the

court to reassess all of the ev idence at the hea ring, weig h it, and determin e that the presence of the pliers hidd en in his

cell was not sufficient. We think we are precluded from making such an evaluation.

14

In that case, and in others cited herein, the court was applying the ‘arbitrary and capricious’ standard found

in the Administrative Procedures Act, Tenn. Code Ann. §4-5-322. While the definitions of arbitrary and capricious

under the APA standard for judicial review have app licability to the same standard under the comm on-law writ of

certiorari, we must still be guided by the limitations inherent in the supervisory, rather than appellate, nature of a

reviewing court’s role in a certiorari proceeding.

-14-

03A01-9810-CH-00320, 1999 Tenn. App. LEXIS 793, at *5-6 (Tenn. Ct. App. Nov. 30, 1999) (no

Tenn. R. App. P. 11 application filed); ABC Home Health of Tenn., Inc. v. Tennessee Health

Facilities Comm’n, No. 01A01-9302-CH-00065, 1993 Tenn. App. LEXIS 561, at *22-23 (Tenn. Ct.

App. Aug. 20, 1993) (Koch, J., dissenting) (petition to rehear denied Sept. 22, 1993).

There is authority stating that another basis for grant of the writ is that the board or

commission followed unlawful procedure. See, e.g., Brooks v. Fisher, 705 S.W.2d 135, 136 (Tenn.

Ct. App. 1985). In Brooks, however, the court’s holding was based upon a finding that the board’s

decision exceeded its authority because the decision was based upon criteria not authorized to be

considered in the zoning ordinance. Thus, the problem was with the substance of the board’s decision

and the substance of the ordinance. “We find nothing in the ordinance before us which would make

this a criterion for the board to consider.” Id. at 138. Similarly, in Hoover, Inc. v. Metro Bd. of

Zoning App., this court’s holding was that the board members “acted illegally, arbitrarily, or

fraudulently because they constructively denied the permit despite their beliefs that Hoover had

fulfilled the zoning requirements.” 924 S.W.2d at 906. While the court discussed a zoning

regulation, it was for the purpose of determining the effect of an abstention; that is, that it was the

same as voting for the prevailing side. Id. Relief was not granted in either of these cases on the basis

of failure to follow procedural requirements established by regulation. Neither involved discussion

of the “unlawful procedure” ground.

The “unlawful procedure” language was inserted into the list of grounds for issuance of the

writ in Watts v. Civil Serv. Bd., 606 S.W.2d 274, 277 (Tenn. 1980). Watts is often quoted and cited

as authority for the grounds for judicial review under the common-law writ. Watts, however, did not

involve an allegation of procedural irregularity in the board’s conduct. Instead, the opinion deals with

the petitioner’s First Amendment claim and is based on the holding that there was material and

substantial evidence to support the board’s decision. Id. Similarly, the opinion in Lafferty v. City of

Winchester, 46 S.W.3d 752 (Tenn. Ct. App. 2000) (also cited by the dissent) contains the “unlawful

procedure” language in the usual list of grounds, but the holding is unrelated to any allegation of

procedural irregularity. Again, the holding was based upon a finding of material evidence to support

the zoning board’s decision. Id. at 760. Finally, Nevills v. South Cent. Corr. Disciplinary Bd.,

M2000-02324-COA-R3-CV, 2001 Tenn. App. LEXIS 714 (Tenn. Ct. App. Sept. 25, 2001) (no Tenn.

R. App. P. 11 application filed) (also cited by the dissent), was an appeal from denial of a writ of

certiorari to review a prison disciplinary board decision. Although the opinion quotes the Watts

language listing grounds for judicial review under the writ, it does not address the “unlawful

procedure” ground. The actual claim for relief in Nevills was an allegation of denial of due process.

This court affirmed dismissal of that claim based upon Sandin.

Thus, while we do not disagree that board action taken upon “unlawful procedure” may

provide a basis for judicial review and relief, we do not agree and find no precedent for a

determination that failure to follow procedures established by internal policies applicable to prison

discipline constitutes such unlawful procedure. While it is clear that procedural defects amounting

to a denial of due process are correctable by writ of certiorari, State v. Womack, 591 S.W.2d 437, 442

(Tenn. Ct. App. 1979), it is not clear what procedural irregularities short of such constitutional

-15-

violation provide a separate state cause of action.15 In the prison disciplinary context, however, state-

created procedural rules or policies do not create a liberty interest from the expectation they will be

followed. As the United States Supreme Court has stated:

By shifting the focus of the liberty interest inquiry to one based on the language of a

particular regulation, and not the nature of the deprivation, the Court encouraged

prisoners to comb regulations in search of mandatory language on which to base

entitlements to various state-conferred privileges. Courts have, in response, and not

altogether illogically, drawn negative inferences from mandatory language in the text

of prison regulations. . . .

Such a conclusion may be entirely sensible in the ordinary task of construing a statute

defining rights and remedies available to the general public. It is a good deal less

sensible in the case of a prison regulation primarily designed to guide correctional

officials in the administration of a prison. Not only are such regulations not designed

to confer rights on inmates, but the result of the negative implication jurisprudence is

not to require the prison officials to follow the negative implication drawn from the

regulation, but is instead to attach procedural protections that may be of quite a

different nature.

Sandin, 515 U.S. at 481, 115 S. Ct. at 2299, 132 L. Ed. 2d at 428.

The dissent would return us to reviewing internal procedural policies to determine if failure

to follow to the letter a particular procedure constituted “unlawful procedure,” where the only basis

for an allegation the procedure was unlawful is the policy itself.16 We simply disagree that the

15

Failure to follow enab ling leg islation, fo r examp le, may co nstitute unlawfu l proc edu re, bu t may also result

in action taken beyond the authority of the board. In contexts other than prison disciplinary proceedings, statutes may

create property interests to which due process protections attach. The San din hold ing d oes n ot implicate the

methodology for determining the existence of such interests. Where a protected interest exists, proced ural due process

is required regardless of the particular requirements of a procedural rule.

16

The United States Supreme Court has abandoned its prior jurisprudence which involved combing through

various state statutes and regulations to determine if they, by their language, created a liberty interest protected by the

Due Pro cess C lause. T he Court ex plained the fundam ental flaw in this methodo logy was that it no longer p roperly

focused on the grievousness of the loss suffered or the nature of the interest actually at stake. The Court also pointed

out problems, or unde sirable effects, caused by its prior metho dolo gy : “ First, it created disincentives for States to codify

prison mana gement pro cedures in the interest of uniform treatme nt. . . . States ma y avoid creatio n of ‘liberty’ interests

by having scarcely any regulation s, or by conferring standardless discretion on correctional personnel.” The second

undesirable result was the increased

involvement of federal courts in the day-to-day management of prisons, often squandering judicial

resources with little offsetting benefit to anyone. In so doing, it has run counter to the view expressed

in several of our cases that federal courts ought to affo rd ap propriate deference and flex ibility to state

officials trying to manage a volatile enviro nment.

(con tinued...)

-16-

common-law writ of certiorari is available in such circumstances. This court has recently addressed

the question of whether an allegation that procedures used in a prison disciplinary proceeding did not

comply with TDOC policies states a claim under the common-law writ of certiorari17 and determined

that the test is whether the essential requirements of the law have been met. We stated:

This court has held that the common-law writ of certiorari is available to correct the

“essential illegality” of a denial of procedural rights guaranteed by the federal and

state constitutions. State v. Womack, 591 S.W.2d 437, 442 (Tenn. Ct. App. 1979). .

. . [A] writ of certiorari “provides a vehicle for a court to remove a case from a lower

tribunal to determine whether there has been a failure to proceed according to the

essential requirements of the law.” Clark v. Metropolitan Gov’t of Nashville and

Davidson Co., 827 S.W.2d 312, 317 (Tenn. Ct. App. 1991) (concurring opinion)

(citing Gallatin Beer Regulation Comm’n v. Ogle, 185 Tenn. 482, 206 S.W.2d 891,

893 (1948)). Thus, an allegation of illegality sufficient to support judicial review of

the board’s decision must involve a failure to follow “essential requirements of the

law.”

....

We do not consider these allegations [made by petitioner in Ahkeen] of failure to

follow internal TDOC procedures to amount to allegations that the disciplinary board

did not follow the essential requirements of the law. In the context of prison

disciplinary proceedings, both the Tennessee Supreme Court and the United States

Supreme Court have recognized the broad discretion necessary to allow prison

officials to perform their responsibilities and, in shaping the law in this area, have also

taken into consideration the realities of life in prison. Courts have recognized that

lawfully convicted prisoners may be subjected to disciplinary proceedings which do

not ensure “a full panoply of rights.” Wolff, 418 U.S. at 540, 94 S. Ct. at 2967. A

prisoner’s interest in sanctions which may be imposed pursuant to such proceedings

is a liberty or property interest, and that interest does not extend to sanctions which

do not “impose atypical and significant hardship” beyond the ordinary incidents of

prison life. Sandin, 115 S. Ct. at 2295. Therefore, we conclude that the “essential

requirements of the law” in this area are those established by the due process clause.

Where the Tennessee legislature has not imposed more stringent requirements on

prison disciplinary procedures, we decline to do so. Without a constitutional or

statutory “essential requirement”, the writ of certiorari procedure does not authorize

courts to create one. Therefore, a failure to sufficiently allege a due process violation

16

(...continued)

San din, 515 U.S. at 481-83, 115 S. Ct. at 2299, 132 L. Ed. 2d 418 at 428-29.

17

In Ahkeen, the petitioner actually maintained that by failing to follow TDO C disciplinary policies, the board

acted illegally, regardless o f wh ether its actions also amo unted to a deprivation of constitutional due pro cess.

-17-

in the conduct of prison disciplinary proceedings is also a failure to allege, under

common-law writ of certiorari grounds, that a disciplinary board has acted illegally

by not following the essential requirements of the law. Accordingly, allegations that

the board acted illegally by failing to follow TDOC procedures do not, in and of

themselves, support issuance of a writ of certiorari to review the legality of the

board’s decision.

Ahkeen, 2001 Tenn. App. LEXIS 815, at *13-22.

We are not convinced that a failure to follow a procedural policy constitutes a failure to

comply with the essential requirements of the law and adhere to our earlier holding in Ahkeen.

IV. Conclusion

We affirm the trial court’s determination that the petition failed to state a claim that Mr.

Tharpe was deprived of due process rights and, therefore, failed to allege that the disciplinary board

acted illegally or arbitrarily. Therefore, we affirm the trial court’s dismissal of the petition for failure

to state a claim under the common-law writ of certiorari. Costs of this appeal are taxed to the

appellants, Edward Tharpe and Tony Willis.18

_____________________________________

PATRICIA J. COTTRELL, JUDGE

18

Mr. Willis is taxed with one half (½) of the costs accrued prior to the filing of Mr. Tharpe’s brief. Mr. Tharpe

is taxed with the remainder of the costs. Mr. Willis abandoned his appeal, and it is therefore dismissed.

-18-