The opinion
BOBBY BLACKMON, )
)
Petitioner/Appellant, ) Appeal No.
) 01-A-01-9807-CH-00361
v. )
) Davidson Chancery
DONAL CAMPBELL, et al, ) No. 97-3616-III
)
Respondents/Appellees. )
) FILED
February 23, 1999
COURT OF APPEALS OF TENNESSEE Crowson, Jr.
Cecil
Appellate Court Clerk
APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR
BOBBY BLACKMON, Pro Se
TDOC # 68314
WTSP, Site 1, A2-41
P. O. Box 1000
Henning, Tennessee
PAUL G. SUMMERS
Attorney General and Reporter
MICHAEL E. MOORE
Solicitor General
ELENA J. XOINIS
Assistant Attorney General
Civil Rights and Claims Division
425 5th Avenue North
Nashville, Tennessee 37243-0488
ATTORNEYS FOR RESPONDENTS/APPELLEES
AFFIRMED AND REMANDED
WILLIAM B. CAIN, JUDGE
OPINION
This is an appeal by a Tennessee prison inmate from the action of the
trial court in declining to issue a statutory writ of certiorari and in granting
summary judgment of dismissal of the appellant's petition for common law
certiorari.
Bobby Blackmon is an inmate in the Tennessee Department of
Corrections facility at Henning, Tennessee. He was working in the kitchen of the
facility and on September 12, 1997, Officer William Troup issued an incident
report charging Blackmon with larceny. This charge was dismissed by the
disciplinary board because the incident report was not written by an appropriate
reporting official. On September 19, 1997, the food service manager, Don
Roberts, reinitiated the incident report charging Blackmon with larceny for
taking food from the kitchen area. At a hearing on this charge on September 23,
1997, the disciplinary board determined that the evidence did not support the
charge of larceny and therefore dismissed same with a recommendation that the
reporting official reinstate the charge based on violation of T.D.O.C. Institutional
Policy.
On September 24, 1997, food service manager Don Roberts reinitiated
the case on violation of T.D.O.C. Institutional Policy and the disciplinary board
heard the case on September 26, 1997. The board found Blackmon guilty of
violation of T.D.O.C. policy and relieved Blackmon of his job in the institution
kitchen.
After exhausting administrative remedies Blackmon filed his petition
for writs of certiorari. The chancellor correctly dismissed the part of the petition
seeking statutory certiorari on the grounds that the disciplinary board in this case
acted in an administrative, quasi-judicial function from which statutory certiorari
does not lie. Alexander Friedmann v. Charles Bass, et al, No. 01A01-9707-CH-
00031 (Tenn.App.M.S. Nov. 19, 1997). As to the application for common law
certiorari the trial court held:
With respect to the petitioner's claim for a common law
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writ of certiorari, the petitioner asserts that his due process
rights have been violated because the Board relied on
manufactured evidence and violated TDOC policy by not
allowing the petitioner to call witnesses and failing to
provide him with adequate notice of the charge. Filed in
support of the motion is the affidavit of James Britt. That
affidavit reveals that there is no genuine issue of material fact
that the Board acted unlawfully or violated the petitioner's
constitutional rights. Accordingly, the Court dismisses the
common law writ of certiorari.
The petitioner is not entitled to due process because the
sanctions imposed against him were not atypical in relation
to the ordinary instance of prison life. See Sandin v. Conner,
115 S. Ct. 2293, 2301, 515 U.S. 472, 132 L. Ed. 2d 418
(1995). The record before the Court establishes that
following a hearing in which the petitioner was allowed to
testify, the petitioner was found guilty of TDOC/Institutional
policy for taking food out of the kitchen without permission.
The Disciplinary Board recommended a job drop for the
petitioner. The sanction does not present the type of atypical
punishment contemplated in Sandin which results in
deprivation of due process.
With respect to the petitioner's claim that the
disciplinary action taken against him violated the
constitutional safeguards against double jeopardy, the Court
dismisses that claim because a hearing before a prison
disciplinary board is not judicial. It is administrative. Ray v.
State, 577 S.W.2d 681, 682 (Tenn. Crim. App. 1978). Thus,
the constitutional guarantees against double jeopardy do not
apply to disciplinary hearings in prison.
The only "punishment" given the petitioner by the disciplinary board
was a removal from his job in the prison kitchen. Such action did not violate due
process rights, even prior to Sandin v. Conner, 115 S.Ct. 2293, 515 U.S. 472, 132
L.Ed.2d 418 (1995). See Lyon v. Farrier, 727 F.2d 766 (1984) 8th Cir.; Newsom
v. Norris, 888 F.2d 371, 374 (6th Cir. 1989).
Sandin is conclusive as to the due process issue and the trial court
properly dismissed the application for writ of common law certiorari.
The prison disciplinary board, being an administrative rather than a
judicial tribunal, is not subject to constitutional guarantees against double
jeopardy. Ray v. State, 577 S.W.2d 681, 682 (Tenn.Cr.App.1978).
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In summary, if a prisoner had no property interests in a certain prison
job that was protected by due process rights prior to the opinion of the United
States Supreme Court in Sandin, it is difficult to imagine how such right could
exist subsequent to Sandin. See Ishaaq v. Compton, 900 F.Supp. 935, 938-40
(W.D.Tenn.1995).
The action of the trial court is in all respects affirmed with costs
assessed to appellant.
____________________________________
WILLIAM B. CAIN, JUDGE
CONCUR:
_______________________________
BEN H. CANTRELL, P.J., M.S.
_______________________________
PATRICIA J. COTTRELL, JUDGE
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