The opinion
FILED
November 10, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
______________________________________________
LESLEY BUFORD,
Petitioner-Appellant,
Davidson Chancery No. 98-616-II
Vs. C.A. No. M1998-00157-COA-R3-CV
TENNESSEE DEPARTMENT
OF CORRECTION, ET AL,
Respondents-Appellees.
______________________________________________________________________
______
FROM THE DAVIDSON COUNTY CHANCERY COURT
THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR
Lesley Buford, Pro Se
Tom Anderson of Jackson
For Appellees
Paul G. Summers, Attorney General and Reporter
Michael E. Moore, Solicitor General
Elena J. Xoinis, Assistant Attorney General
For Appellee, Tennessee Department of Correction
AFFIRMED AND REMANDED
Opinion filed:
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W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
ALAN E. HIGHERS, JUDGE
DAVID R. FARMER, JUDGE
This case involves a petition for writ of certiorari filed by a state prisoner. The
prisoner challenges a disciplinary proceeding brought against him. The trial court
dismissed the suit for failure to state a claim upon which relief can be granted. We affirm.
FACTS
Appellant, Lesley Buford, is an inmate in the custody of the Tennessee Department
of Correction. On December 1, 1997, the appellant appeared before the disciplinary board
at the South Central Correctional Facility in Clifton, Tennessee, on the charge of creating a
disturbance at the prison on the evening of November 18, 1997. The disciplinary board
found Buford guilty of a Class B infraction and sentenced him to fifteen days in punitive
segregation, fined him four dollars and imposed a four month package restriction.
The appellant appealed the disciplinary board’s decision to Warden Kevin Myers,
who affirmed the decision and punishment. Buford then appealed to the Department of
Correction’s Assistant Commissioner Jim Rose, who also affirmed the conviction.
Subsequently, Correction Commissioner, Donal Campbell, affirmed the conviction on
January 20, 1998.
On February 27, 1998, Buford filed in the Chancery Court for Davidson County,
Tennessee, ten petitions for writs of certiorari against the following defendants: Kevin
Meyers, Raleigh Brewer, Jim Rose, Donal Campbell, Tina Schachle, Ira Campbell, Dale
Brewer, Roscoe Clayton, Fred Alexander, and David Hensley. The trial court found that the
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complaints involved common questions of law and fact and arose out of a common
occurrence. Specifically, in his petitions for writs of certiorari, Buford contended that the
Disciplinary Board (“Board”) was an illegal tribunal because South Central Correctional
Facility, a private prison operated by Corrections Corporation of America, was without
authority to take disciplinary action against inmates. Additionally, Buford alleged that the
Board violated his rights to due process. The trial court entered an order on March 12,
1998, pursuant to Rule 42, Tenn.R.Civ.P. consolidating the ten petitions.
On July 27, 1998, the Tennessee Department of Correction filed a Rule 12.02(6)
Tenn.R.Civ.P. motion to dismiss the complaint for failure to state a claim upon which relief
can be granted. By order entered September 4, 1998, the trial court dismissed Buford’s
petitions. Buford timely filed a motion to alter or amend the judgment on September 21,
1998, which the trial court denied by order entered November 2, 1998. The appellant timely
filed a notice of appeal on November 25, 1998, and presents four issues for review as
stated in his brief:
1. Did the Trial Court err in determining that Petitioner had not
stated a claim upon which relief could be granted?
2. Did the Trial Court err in determining that Petitioner was not
entitled to due process protections?
3. Did the Trial Court err in determining that the Tennessee
Department of Correction is the only and sole respondent to a
Petition for Writ of Certiorari?
4. Did the Trial Court err in denying the Motion to Amend
Petition after the Motion to Amend petition had been previously
granted?
Buford asserts that the trial court erred in dismissing his petitions for writs of
certiorari by determining that he was not entitled to due process protections, in determining
that the Tennessee Department of Correction is the only proper respondent to a petition for
writ of certiorari, and by denying his motion to amend the petition.
We first turn our attention to the proper party to this proceeding. The trial court found,
and we affirm, that the only proper party to this proceeding is the Tennessee Department of
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Correction. T.C.A. § 27-9-104 (1980) provides:
The petition shall be addressed to the presiding chancellor and
shall name as defendants the particular board or commission
and such other parties of record, if such, as were involved in the
hearing before the board or commission, and who do not join as
petitioners.
In this case, the only party of record was the department, and, thus, the only proper
defendant was the Tennessee Department of Correction. The trial court properly dismissed
the complaint against the individual defendants because they are not the correct parties to
be sued.
Buford next asserts that a private prison’s disciplinary board has no authority to
discipline prisoners. We do not disagree with this assertion. Tennessee law clearly
prohibits the delegation of power to discipline prisoners to a private prison contractor.
T.C.A. § 41-24-110(5) (1986) provides in pertinent part:
No contract for correctional services shall authorize, allow or
imply a delegation of the authority or responsibility of the
commissioner to a prison contractor for any of the following:
.......
(5) Granting, denying or revoking sentence credits; placing an
inmate under less restrictive custody or more restrictive
custody; or taking any disciplinary actions.
In Mandela v. Campbell et al., 978 S.W.2d 531 (Tenn. 1998), the Supreme Court
addressed the issue of whether private contractor employees were authorized under law to
sit on disciplinary boards. It is noteworthy that the Mandela case arose out of the South
Central Correctional Facility, the same prison at issue in the instant case. The Supreme
Court found that the Uniform Disciplinary Procedures mandate the appointment of a liaison
between the Department of Correction and the private contractor. Id. at 532. Under Policy
No. 9502.01(IV)(A), the Commissioner’s designee is a Department of Correction employee
who is “authorized” by the Commissioner to serve as the approving authority for specified
actions at privately contracted prisons. Policy 9502.01(IV)(A) provides:
A commissioner’s designee shall:
Observe all Class A and B disciplinary hearings, and approve
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or modify all recommendations of the disciplinary board at the
time of the hearing...
Accordingly, the disciplinary board conducts hearings, reviews the evidence and makes
recommendations to the Department of Correction liaison who must approve or modify the
board’s recommendation. As noted in Mandela,
The final approval of the disciplinary recommendation rested
solely with the TDOC commissioner’s designee. The board’s
recommendation as to punishment was merely a
recommendation, and actual discipline was not imposed until
the TDOC representative reviewed the case and approved the
board’s recommendation. Accordingly, the TDOC retained the
authority to punish the prisoners and, in fact, imposed the
punishments in the cases now before us.
Id. at 533.
The trial court found that Roscoe Clayton, an employee of the Tennessee
Department of Correction and the Commissioner’s designee, was present at the
disciplinary hearing and approved the board’s recommendation. In the present case, not
only did the Department of Correction representative review the case and approve the
board’s recommendation, but, also, the Commissioner reviewed the findings and
recommendations and approved the punishment. In initiating this cause of action in
the trial court, Buford filed numerous petitions for writs of certiorari. In Tennessee, two types
of certiorari exist. T.C.A. § 27-8-101 provides the common law writ of certiorari, and T.C.A.
§ 27-8-102 provides the statutory writ of certiorari. Fairhaven Corp. v. Tenn. Health
Facilities Comm., 566 S.W.2d 885, 886 (Tenn. App. 1976).
Under the common law writ, the intrinsic correctness of the decision of the lower
tribunal is not subject to judicial review. Powell v. Parole Eligibility Review Bd., 879
S.W.2d 871, 873 (Tenn. App. 1994). Under the common law writ, the scope of review is
generally limited to a determination of whether the administrative body acted within its
jurisdiction or acted arbitrarily, capriciously, or illegally. Cooper v Williamson County Bd.
of Educ., 746 S.W.2d 176, 179 (Tenn. 1987). In Cooper, the Court said:
The scope of review under the common law writ does not
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ordinarily extend to a redetermination of the facts found by the
administrative body. As we observed in Davison v. Carr, [659
S.W.2d 361 (Tenn. 1983)]:
Generally, under common law certiorari, the
scope of review is limited to the record to
determine as a question of law whether there is
any material evidence to support the agency’s
findings. However, new evidence is admissible
on the issue of whether the administrative body
exceeded its jurisdiction or acted illegally,
capriciously or arbitrarily.
Id. at 363.
746 S.W.2d at 179.
Buford asserts that the trial court erred in dismissing his petition for a statutory writ of
certiorari pursuant to T.C.A. § 27-8-102 (1981), which provides that the statutory writ of
certiorari is available in five instances: “(1) On suggestion of diminution; (2) Where no
appeal is given; (3) As a substitute for appeal; (4) Instead of audita querela; or (5) Instead of
writ of error.” The only one of the five possible circumstances under which the statutory writ
would be arguably available is the second situation, “where no appeal is given.” If the
statutory writ lies, review under the writ is de novo and may be used to correct errors of fact
and law committed by the inferior tribunal. Boyce v. Williams, 389 S.W.2d 272, 276 (Tenn.
1965). Moreover, the reviewing court may conduct a trial on the merits. Roberts v. Brown,
310 S.W.2d 197, 206-208 (Tenn. App. 1958).
In an excellent and often cited article, Judge Ben Cantrell, now of this Court,
summarized the case law and described the requirements that must be met for issuance of
a statutory writ of certiorari :
In summary, in the absence of a specific statute expressly
granting the writ, the statutory writ of certiorari is available only if
the following requirements are met: (1) the order of the
administrative body of which review is sought is one for which
no judicial review is provided; (2) the function performed by the
lower tribunal is essentially judicial in nature; (3) the order for
which review is sought finally determines the rights of the
petitioner. Cantrell, Review of Administrative Decisions by
Writ of Certiorari in Tennessee , 4 Mem. St. U.L. Rev. 19, 27-28
(1973).
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There is a split of authority among the appellate courts in this state regarding whether
the functions of a prison’s disciplinary board are “essentially judicial in nature.” In two
previous unreported decisions, the Western Section of this Court determined that the
disciplinary board’s action was essentially judicial in nature. Cobb v. Vinson et al., No.
02A01-9707-CV-00144 (Tenn. App. April 1, 1998); Williams v. Tenn. Dept. of Correction
, No. 02A01-9503-CV-00046 (Tenn. App. Oct. 2, 1995). However, in Ray v. State, 577
S.W.2d 681, 682 (Tenn. Crim. App. 1978) cert. denied (1979), the Court of Criminal
Appeals, relying upon State ex rel. Turner v. Gore, 175 S.W.2d 317 (Tenn. 1943), held
that proceedings before prison disciplinary boards are administrative in nature and are not
judicial proceedings. Moreover, the Middle Section of this Court stated in Friedman v.
Bass et al., No. 01A01-9707-CH-00331 (Tenn. App. Nov. 19, 1997), “[T]he only vehicle for
seeking judicial review of a prison disciplinary proceedings is a petition for common-law
writ of certiorari.” Id. at *1. (citing Bishop v. Conley, 894 S.W.2d 294, 196 (Tenn. Crim.
App. 1994); Snodgrass v. Noles, No. 02C01-9403-CC-00037 (Tenn. Crim. App. July 8,
1994)). See also, Blackmon v. Campbell et al., No. 02A01-9807-CH-00361 (Tenn. App.
Feb. 23, 1999).
Upon further consideration, the Western Section of this Court departs from our
holdings in Williams and Cobb, and declares, along with the other courts, that the functions
of prison disciplinary boards are administrative and not judicial in nature. Therefore, the
statutory writ of certiorari, T.C.A. § 27-8-102, is not available for review of proceedings
taken by a prison disciplinary board. Accordingly, we conclude that the trial court did not err
in denying the petition for writ of statutory certiorari.
We now consider whether the trial court erred in dismissing the appellant’s petition
for common-law writ of certiorari. As noted above, the scope of review under the
common-law writ of certiorari is very narrow. In Powell v. Parole Eligibility Review Bd.,
879 S.W.2d 871, 873 (Tenn. App. 1994), this Court stated:
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The scope of review under the common-law writ, however, is
very narrow. It covers only an inquiry into whether the Board has
exceeded its jurisdiction or is acting illegally, fraudulently, or
arbitrarily. Conclusory terms such as “arbitrary and capricious”
will not entitle a petitioner to the writ. At the risk of
oversimplification, one may say that it is not the correctness of
the decision that is subject to judicial review, but the manner in
which the decision is reached. If the agency or board has
reached its decision in a constitutional or lawful manner, then
the decision would not be subject to judicial review.
Id. at 873 (citations omitted).
Buford asserts that the disciplinary board proceedings violated his procedural due
process rights. In order to prevail with these claims, he must demonstrate that the conduct
of prison officials has imposed “atypical and significant hardships on the inmate in relation
to the ordinary incident of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct.
2293, 2300, 132 L.Ed.2d 418 (1995). Prison disciplinary proceedings are within the
expected parameters of a prison sentence and are an ordinary part of prison life. Sandin v.
Conner, 515 U.S. at 485, 115, S.Ct. at 2301. See also, Friedmann v Bass et al., No.
01A01-9707-CH-00331.
We find nothing arbitrary or improper in the conduct of Buford’s disciplinary hearing
at the South Central Correctional Facility. Buford received adequate notice of the
proceedings against him, he testified on his own behalf at the disciplinary hearing, and he
waived his right to call witnesses. Moreover, the disciplinary board provided a statement of
its findings, and the punishment meted out - fifteen days punitive segregation, a four dollar
fine, and a four month package restriction - is not the atypical and significant hardship
contemplated by Sandin. Accordingly, we affirm the trial court’s decision to dismiss Buford’
s petition.
Finally, Buford complains that the trial court erred by denying his petition to amend
the complaint to name David Hensley as a defendant. Buford filed a motion to amend the
petition on May 19, 1998, which the trial court granted by order entered July 29, 1998.
However, in the final order entered September 8, 1998, the trial court denied Buford’s
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motion to amend, finding correctly that the only proper party defendant is the Tennessee
Department of Correction.
Accordingly, the order of the trial court is affirmed. The case is remanded to the trial
court for such further proceedings as are necessary. Costs of appeal are assessed against
appellant.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
____________________________________
ALAN E. HIGHERS, JUDGE
____________________________________
DAVID R. FARMER, JUDGE
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