Jeffery Walton v. Tennessee Department of Correction

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 19, 2016

JEFFERY WALTON v. TENNESSEE DEPARTMENT OF CORRECTION,

ET AL.

Appeal from the Chancery Court for Hardeman County

No. 18178 Martha Brasfield, Chancellor

________________________________

No. W2015-01336-COA-R3-CV – Filed May 23, 2016

_________________________________

Appellant, an inmate at a state prison operated by a private contractor, filed the underlying

pro se petition for a writ of certiorari to challenge the result of a disciplinary proceeding

against him. The trial court dismissed the petition against the private contractor‟s employees

on the ground that these employees could not impose punishment on the inmate under

Tennessee Code Annotated Section 41-24-110(5) and were, thus, not proper parties to the

petition. As to the Appellee Tennessee Department of Correction, the trial court dismissed

the petition, finding that the board had not acted illegally, arbitrarily, or fraudulently and that

the inmate had not stated a claim for violation of due process. We affirm and remand.

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

Affirmed and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,

P.J., W.S., and KENNY ARMSTRONG, J., joined.

Jeffrey Walton, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter, Andrée Sophia Blumstein, Solicitor

General, and Madeline B. Brough, Assistant Attorney General, Nashville, Tennessee, for the

appellee, Tennessee Department of Correction.

James I. Pentecost and Nathan D. Tilly, Jackson, Tennessee, for appellees, Cherry

Lindamood, Trudy Powell, and Vivian Oliver.

OPINION

I. Background

Appellant Jeffrey Walton is an inmate in the custody of the Tennessee Department of

Correction (“TDOC”). At all times relevant to this case, Mr. Walton was incarcerated at the

Whiteville Correctional Facility (“WCF”). WCF is a private prison operated by Corrections

Corporation of America (“CCA”). Cherry Lindamood, Trudy Powell, and Vivian Oliver

(collectively the “CCA Respondents,” and together with TDOC, “Appellees”) are all

employed by CCA. Ms. Lindamood is the Warden at WCF. Ms. Powell is the Disciplinary

Chairperson at WCF, and Ms. Oliver is a sergeant at WCF.

The instant appeal arises from disciplinary action that was taken against Mr. Walton.

On August 29, 2014, Mr. Walton and his cellmate were presented with disciplinary reports

that charged the two inmates with possession and use of tobacco products. The incident

report states that, while making rounds on August 29, 2014, Sergeant Oliver observed Mr.

Walton and his cellmate smoking tobacco. The report further states that Sergeant Oliver

entered the cell and asked for the cigarette, but Mr. Walton‟s cellmate flushed it down the

toilet.

A disciplinary hearing was originally set for September 5, 2014, but was continued

twice. The hearing was eventually held on September 16, 2014. Trudy Powell presided over

the Disciplinary Board hearing, and Mr. Walton was represented by an inmate advisor.

According to the Disciplinary Report Hearing Summary, Mr. Walton pled “not guilty” to the

charge of possession/use of tobacco products and specifically stated that “he did not know

anything about a cigarette.” At the hearing, Sergeant Oliver testified that she witnessed Mr.

Walton smoking a cigarette that he then handed to his cellmate, who flushed it down the

toilet. The Disciplinary Board found Mr. Walton guilty and imposed punishment of a $4.00

fine, five days of segregation, and loss of visitation privileges for three months.

On September 22, 2014, Mr. Walton appealed the Disciplinary Board‟s decision to

Ms. Lindamood, the Warden of WCF. In his appeal, Mr. Walton argued that: (1) no physical

evidence was presented at the hearing; (2) the reporting officer presented contradictory

statements at the due process hearing that are not part of her written report; and (3) the

reporting officer violated TDOC policy 506.15 concerning disposition of contraband. Ms.

Lindamood affirmed the Disciplinary Board‟s decision. On October 24, 2014, Mr. Walton

appealed to the Commissioner of Corrections, and the Commissioner‟s Designee, Pat Spears,

affirmed the conviction.1

1

As explained by the Tennessee Supreme Court, in Mandela v. Campbell, 978 S.W.2d 531, 532-33 (Tenn.

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On December 23, 2014, Mr. Walton filed a petition for common-law writ of certiorari

in the Chancery Court of Hardeman County (the “trial court”).2 Mr. Walton‟s petition for

writ of certiorari contains additional allegations of deprivation of due process. In relevant

part, he avers that the Disciplinary Board‟s failure to record the proceeding resulted in a lack

of evidence of Sergeant Oliver‟s “contradictive statements of testimony.” Additionally, Mr.

Walton maintains that the charges against him were false and were in retaliation for past

incidents. He also argues that his punishment was too severe. In sum, by his petition, Mr.

Walton sought review of his conviction for possession of tobacco on the following grounds:

(1) the Disciplinary Board violated his due process rights under TDOC policy 502.01 by not

meeting the preponderance of the evidence standard; (2) the Disciplinary Board violated

1998):

The TDOC‟s Uniform Disciplinary Procedures were implemented to provide a “fair

and impartial tribunal [to hear] all disciplinary charges brought against inmates of the

TDOC.” Policy # 9502.01(IV)(A). The policy governs the manner in which disciplinary

hearings shall be conducted, outlines an accused‟s rights, and establishes a disciplinary board.

Disciplinary boards are comprised of six institutional employees, and “disciplinary hearing[s]

shall be conducted before a panel of at least three (3) members” of the disciplinary board.

Policy # 9502.01(VI)(A)(I).

The Uniform Disciplinary Procedures mandate appointment of a liaison between the

TDOC and the private contractor. This liaison is referred to as a “Commissioner's Designee.”

The commissioner's designee is a TDOC employee who is “authorized by the commissioner to

serve as the approving authority for specified actions occurring at privately contracted TDOC

facilities.” Policy # 9502.01(IV)(I). A commissioner‟s designee shall:

observe all Class A and B disciplinary hearings, and approve or modify all

recommendations of the disciplinary board at the time of the hearing. In

cases of Class C infractions where punitive segregation is recommended, the

commissioner‟s designee must approve/modify the recommendation as soon

as possible and prior to the inmate‟s placement in segregation. If the

commissioner [sic] designee is not present at a Class C hearing at which the

board recommends any punishment other than a verbal warning, the

chairperson shall forward all documentation to the commissioner [sic]

designee for review prior to punishment.

Policy # 9502.01(VI)(D)(2). Accordingly, the disciplinary board conducts hearings, reviews

the evidence, and makes recommendations to the TDOC liaison, who must approve or modify

the board‟s recommendation.

2

As discussed, infra, Mr. Walton‟s petition also named CCA as a Respondent.

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TDOC policy 506.15 concerning the disposition of contraband; (3) the Commissioner‟s

Designee committed reversible error when he stated that there was not a due process

violation noted in Mr. Walton‟s disciplinary appeal and documentation; (4) the TDOC

Commissioner committed reversible error when he stated that Mr. Walton failed to support

the fact that the Commissioner‟s Designee reached an incorrect decision when reviewing the

appeal; and (5) Appellees have knowingly and willfully fabricated disposition documents and

forged the dates and signature on these documents. On February 5, 2015, TDOC filed a

notice of no opposition to the petition for writ of certiorari, and the trial court granted the

petition by order of February 11, 2015.

On February 9, 2015, the CCA Respondents filed a motion to dismiss pursuant to

Tennessee Rules of Civil Procedure 12.02(1) and (6). Specifically, the CCA Respondents

argued that: (1) Mr. Walton had failed to comply with Tennessee Code Annotated Section

27-8-106, which requires a petitioner to state, in his or her petition for writ of certiorari, that

“it is the first application for the writ;” and (2) the CCA Respondents are not proper parties

to the action because TDOC, not the CCA employees have the authority to take disciplinary

action on an inmate under Tennessee Code Annotated Section 41-24-110(5) and TDOC

Policy § 502.01. Mr. Walton opposed the CCA Respondents‟ motion to dismiss and

specifically argued that the CCA Respondents “have read language into [the statute] that the

general assembly did not place there.” Mr. Walton further argued that the CCA Respondents

were, in fact, proper parties because they were the individuals who actually imposed his

punishment.

On June 24, 2015, the trial court entered an order of dismissal, wherein it: (1) granted

the CCA Respondents‟ motion to dismiss on the ground that Tennessee Code Annotated

Section 27-9-104 specifically “exempts CCA employees as parties to a writ of certiorari

action”; (2) found that, although Mr. Walton‟s initial petition did not contain the required

language that it was his “first application for the writ,” Tenn. Code Ann. § 27-8-106, he had

subsequently amended his petition to include the language, and thus TDOC‟s argument, in

this regard, was not a proper ground for dismissal; (3) concluded that, “[w]ith regard to [Mr.

Walton‟s] disposition of contraband and lack of physical evidence [arguments],” “any

physical evidence/contraband that existed was flushed down the toilet by [Mr. Walton‟s]

cellmate and thus was not available as evidence at the disciplinary hearing;” and (4) “[w]ith

regard to [Mr. Walton‟s] retaliation claims, a Petition for Writ of Certiorari is not the proper

vehicle for such claims.” Based upon the foregoing, the trial court concluded that there was

“no violation of due process rights, and no illegal, fraudulent, or arbitrary actions [on the

part] of the Disciplinary Board.” Accordingly, the trial court dismissed Mr. Walton‟s

petition. Mr. Walton appeals.

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II. Issues

Mr. Walton raises the following issues for review as stated in his brief:

1. Whether this Honorable Court has subject matter jurisdiction over this case,

where the judgment appealed is not a final judgment.

2. Whether the lower court erred when it dismissed Respondents Cherry

Lindamood, Trudy Powell, and Vivian Oliver, and for failing to state its

factual findings on the record as required by T.C.A. 27-9-111(b), (c), and (d).

3. Whether TDOC, CCA, Cherry Lindamood, Trudy Powell, and Vivian

Oliver exceeded their jurisdiction and acted illegally, fraudulently, or

arbitrarily in regards to the manner in which their decision against Appellant

was reached, thereby resulting in a violation of Appellant‟s due process rights

guaranteed by the Tennessee and United States Constitutions.

4. Whether the trial court erred when it found no violation of Appellant‟s due

process rights and no illegal, fraudulent, or arbitrary actions of the CCA and

TDOC Disciplinary Board officials.

III. Standard of Review

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 Willis v. Tenn. Dep’t of Corr.,

113 S.W.3d 706, 710 (Tenn. 2003); 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)).

The issuance of a writ of common-law certiorari is not an adjudication of anything. Keen v.

Tenn. Dep’t of Corr., No. M2007-00632-COA-R3-CV, 2008 WL 539059, at *2 (Tenn. Ct.

App. Feb. 25, 2008) (citing Gore v. Tenn. Dep’t of Corr., 132 S.W.3d 369, 375 (Tenn. Ct.

App. 2003)). Instead, it is “simply an order to the lower tribunal to file the complete record of

its proceedings so the trial court can determine whether the petitioner is entitled to relief.”

Hawkins v. Tenn. Dep’t of Corr., 127 S.W.3d 749, 757 (Tenn. Ct. App. 2002); Hall v.

McLesky, 83 S.W.3d 752, 757 (Tenn. Ct. App. 2001).

Review under a writ of certiorari is limited to whether the inferior board or tribunal

exceeded its jurisdiction or acted illegally, arbitrarily, or fraudulently, and whether there is

any material evidence to support the board‟s findings. Watts v. Civil Serv. Bd. of Columbia,

606 S.W.2d 274, 276-77 (Tenn. 1980); Davidson v. Carr, 659 S.W.2d 361, 363 (Tenn.

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1983); Harding Acad. v. Metro. Gov’t of Nashville & Davidson Cnty., 222 S.W.3d 359, 363

(Tenn. 2007); see also Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn. 2012). These

determinations are issues of law. Watts, 606 S.W.2d at 277.

The Tennessee Supreme Court has held that the use of the common-law writ of

certiorari is appropriate to provide judicial relief from: (1) fundamentally illegal rulings; (2)

proceedings inconsistent with essential legal requirements; (3) proceedings that effectively

deny parties their day in court; (4) decisions that are beyond the decision-maker‟s authority;

and (5) decisions that involve plain and palpable abuses of discretion. State v. Lane, 254

S.W.3d 349, at 355 (Tenn. 2008) (quoting Willis, 113 S.W.3d at 712). A common-law writ of

certiorari proceeding does not empower the courts to re-determine the facts found by the

entity whose decision is being reviewed. Tenn. Waste Movers, Inc. v. Loudon Cnty., 160

S.W.3d 517, 520 n. 2 (Tenn. 2005); Cooper v. Williamson Cnty. Bd. of Educ., 746 S.W.2d

176, 179 (Tenn. 1987). Accordingly, we have repeatedly cautioned that a common-law writ

of certiorari does not authorize a reviewing court to evaluate the intrinsic correctness of a

governmental entity‟s decision. See, e.g., Willis, 113 S.W.3d at 712; Stewart, 368 S.W.3d at

465; Arnold v. Tenn. Bd. of Paroles, 956 S.W.2d 478, 480 (Tenn. 1997). As previously

stated by this Court:

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.

Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994). “A

board‟s determination is arbitrary and void if it is unsupported by any material evidence.”

Watts, 606 S.W.2d at 276-77. Whether there existed material evidence to support the board‟s

decision is a question of law, which should be determined by the reviewing court based on

the evidence submitted. Id. This Court must review a trial court‟s conclusions of matters of

law de novo with no presumption of correctness. Tenn. R. App. P. 13(d). Again, this Court

“will not „inquire into the intrinsic correctness of the [b]oard‟s decision,‟ but will uphold the

decision if it was reached lawfully and in a constitutional manner.” Hopkins v. Tenn. Bd. of

Paroles and Prob., 60 S.W.3d 79, 82 (Tenn. Ct. App. 2001). Accordingly, we consider Mr.

Walton‟s arguments within these parameters.

IV. Analysis

We are cognizant that Mr. Walton is a prison inmate, who is proceeding pro se in this

appeal. The courts should take into account that many pro se litigants have no legal training

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and little familiarity with the judicial system. Garrard v. Tenn. Dep’t of Corr., No. M2013-

01525-COA-R3-CV, 2014 WL 1887298, at *3 (Tenn. Ct. App. May 8, 2014) (internal

citations omitted). However, it is well-settled that “pro se litigants are held to the same

procedural and substantive standards to which lawyers must adhere.” Brown v. Christian

Bros. Univ., No. W2012-01336-COA-R3-CV, 2013 WL 3982137, at *3 (Tenn. Ct. App.

Aug. 5, 2013), perm. app. denied (Tenn. Jan. 15, 2014). While a party who chooses to

represent himself or herself is entitled to the fair and equal treatment of the courts, Hodges v.

Tenn. Att’y Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App. 2000), “[p]ro se litigants are not ...

entitled to shift the burden of litigating their case to the courts.” Whitaker v. Whirlpool

Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000). With this in mind, we now turn to address

the specific issues Mr. Walton raises.

A. Jurisdiction over the Appeal

Mr. Walton filed a timely notice of appeal to this Court. However, upon review of the

appellate record, we determined that the trial court had not adjudicated Mr. Walton‟s claims

against CCA so as to confer subject-matter jurisdiction on this Court under Tennessee Rule

of Appellate Procedure 3. See, e.g., Irwin v. Tenn. Dep’t. of Corr., 244 S.W.3d 832, 834

(Tenn. Ct. App. 2007) (“[A final judgment] must adjudicate all of the claims between the

parties.”). On or about February 25, 2016, we entered a show cause order, in which we

specifically explained that the record contained nothing “reflecting [either] that the trial court

adjudicated the claims against Corrections Corporation of America . . .,” or that a copy of the

trial court‟s June 24, 2014 order was served on CCA as required by Tennessee Rule of Civil

Procedure 58. In response to our order, on March 14, 2016, Mr. Walton filed a “Motion for

Default Judgment or to Clarify Record on Appeal” in the trial court. By his motion, Mr.

Walton sought a default judgment against CCA or, in the alternative, for the trial court to

correct the shortcomings outlined in our order. On March 17, 2016, the trial court entered a

“Clarification of Order of Dismissal,” which was filed as a supplement to the appellate

record. Therein, the trial court explained that “[i]t was the intention of [the trial court] to

dismiss the employees of CCA and also CCA,” and amended its June 24, 2015 order to

reflect dismissal of TDOC, CCA, and the CCA Respondents. With the entry of the March

17, 2016 clarification, it now appears that the trial court‟s order is final and appealable under

Tennessee Rule of Appellate Procedure 3. Accordingly, this Court has jurisdiction to hear

the appeal.

B. Dismissal of CCA Respondents

Tennessee Code Annotated Section 27-9-101, et seq. sets out the procedural

framework governing petitions for common-law writ of certiorari. Fentress Cnty. Beer Bd.

v. Cravens, 365 S.W.2d 260, 263 (Tenn. 1962). Tennessee Code Annotated Section 27-9-

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104 provides that the petitioner for a writ of certiorari “shall name as defendants the

particular board . . . and such other parties of record, if such, as were involved in the hearing

before the board or commissioners, and who do not join as petitioners.” However, the

discipline of prisoners is a non-delegable duty of the State, and state law prohibits private

prisons or their employees from having the authority to take disciplinary actions against

prisoners:

Commissioner; nondelegable powers and duties: 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

action.

Tenn. Code Ann. § 41-24-110 (emphasis added). Accordingly, CCA employees have no

power to take disciplinary actions against state prisoners and are, therefore, not proper parties

to an inmate‟s writ of certiorari action. See, e.g., Mandela v. Campbell, 978 S.W.2d 531,

533 (Tenn. 1998) (holding that the board‟s proposed punishment is simply a

recommendation, and the final approval of a disciplinary action rests solely with the

commissioner‟s designee); Horton v. Tenn. Dep’t of Corr., No. M1999-02798-COA-R3-CV,

2002 WL 31126656, at *6 (Tenn. Ct. App. Sept. 26, 2002) (“The employees of privately

operated prisons . . . do not have the authority to discipline prisoners.”).

Here, Mr. Walton argues that the Disciplinary Board exceeded its jurisdiction and

acted illegally, fraudulently, or arbitrarily by allowing Trudy Powell, a CCA employee, to

impose his punishment. In Mandela, the Tennessee Supreme Court specifically addressed

the question of whether TDOC‟s Uniform Disciplinary Procedures violate Tennessee Code

Annotated Section 41-24-110(5) by permitting private contractor employees to sit on

disciplinary boards:

In the cases now before us, a disciplinary board was comprised of private

contractor employees. These private contractor employees reviewed the

evidence, entered findings, and made recommendations to a TDOC liaison.

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

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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. Policy # 502.01 does not violate Tenn. Code Ann. § 41-24-110(5).

This issue is devoid of merit.

Mandela, 978 S.W.2d at 533. In other words, it is permissible for the CCA employees to act

as a member on a disciplinary board so long as the punishment suggested is reviewed and

approved by the TDOC. Id. As discussed in Horton v. Tennessee Department of

Correction, No. M1999-02798-COA-R3-CV, 2002 WL 31126656 (Tenn. Ct. App. Sept. 26,

2002):

It is well-settled that no CCA employee has freestanding power to take

disciplinary actions against state prisoners. The discipline of prisoners is a

non-delegable duty of the State. Tenn. Code Ann. § 41-24-110 (1997). Though

the prison disciplinary board at South Central Correctional Center is comprised

of CCA employees, those individuals only recommend punishment. Actual

discipline is not imposed until a representative of the Department reviews and

approves the board‟s recommendation. Mandela v. Campbell 978 S.W.2d 531,

533 (Tenn. 1998). As we have recently held, it follows from this arrangement

that a petition for certiorari directed at one or more CCA employees over a

matter of prison discipline fails to state a claim for relief. The proper party

defendant in such cases is the Department, as the responsible governmental

agency. Wilson v. South Cent. Corr. Facility Disciplinary Bd., No. M2000-

00303-COA-RM-CV, 2000 WL 1425228, at *6 (Tenn. Ct. App. Sept. 28,

2000) (No Tenn. R. App. P. 11 application filed); Turner v. Campbell, 15

S.W.3d 466, 468 (Tenn. Ct. App. 1999).

Id. at *4; see also Turner v. Campbell, 15 S.W.3d 466 (Tenn. Ct. App. 1999). Although, in

the instant case, the Disciplinary Board was comprised of CCA employees, who made

recommendations for Mr. Walton‟s punishment, the recommendations were ultimately

reviewed and approved by the Commissioner‟s Designee, Pat Spears, as indicated by Ms.

Spears‟ signature on the Disciplinary Hearing Summary Form. Accordingly, the trial court

did not err in granting the CCA Respondents‟ motion to dismiss for failure to state a claim.

Having determined that the trial court did not err in dismissing the CCA Respondents, we

will address Mr. Walton‟s remaining issues only as they relate to the actions of the TDOC,

which is the only proper party to Mr. Walton‟s petition.

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C. Whether the Disciplinary Board Acted Illegally, Fraudulently, or Arbitrarily

As set out above, review under a writ of certiorari is limited to whether the inferior

board or tribunal exceeded its jurisdiction or acted illegally, arbitrarily, or fraudulently, and

whether there is any material evidence to support the board‟s findings. Watts, 606 S.W.2d at

276-77. A prisoner seeking judicial review of a disciplinary proceeding has the burden to

prove “that the disciplinary board failed to follow the Uniform Disciplinary Procedures and

this failure substantially prejudiced the petitioner.” Willis v. Tenn. Dep’t of Corr., 113

S.W.3d 706, 713 (Tenn. 2003). However, minor deviations do not require dismissal of the

offense if the inmate received a fair hearing. Jeffries v. Tenn. Dep’t of Corr., 108 S.W.3d

862, 873 (Tenn. Ct. App. 2002) (“Tenn. Dep‟t Corr. Policy No. 502.01(V) itself provides that

„minor deviations‟ from the procedures that do not prejudice the prisoner do not require

dismissal of the disciplinary offense. To trigger judicial relief, a departure from the Uniform

Disciplinary Procedures must effectively deny the prisoner a fair hearing.”).

Mr. Walton first argues that, when reviewing the Disciplinary Board‟s decision, the

trial court erred by not construing the petition in the light most favorable to Mr. Walton. In

the first instance, the reviewing court does not review the record in a light favorable to either

party. Rather, as set out above, “[r]eview under a writ of certiorari is limited to whether the

inferior board or tribunal exceeded its jurisdiction or acted illegally, arbitrarily, or

fraudulently, and whether there is any material evidence to support the board‟s findings.”

Watts, 606 S.W.2d at 276-77. Furthermore, contrary to Mr. Walton‟s argument, the

reviewing court cannot weigh the evidence that was adduced at the disciplinary hearing, nor

can the reviewing court “re-determine the facts found by the entity whose decision is being

reviewed.” Tenn. Waste Movers, Inc. v. Loudon Cnty., 160 S.W.3d 517, 520 n. 2 (Tenn.

2005); Cooper v. Williamson Cnty. Bd. of Educ., 746 S.W.2d 176, 179 (Tenn. 1987). In

other words, a common-law writ of certiorari does not authorize a reviewing court to evaluate

the intrinsic correctness of a governmental entity‟s decision. See, e.g., Willis, 113 S.W.3d at

712; Stewart, 368 S.W.3d at 465; Arnold v. Tenn. Bd. of Paroles, 956 S.W.2d 478, 480

(Tenn. 1997). Here, there is no evidence that the trial court weighed the evidence that was

before the Disciplinary Board. Rather, it appears that the trial court merely evaluated the

procedure used by the governmental entity; accordingly, we cannot conclude that the trial

court applied an incorrect standard or otherwise extended its review beyond the purview of

the common-law writ of certiorari.

Mr. Walton also argues that the Disciplinary Board failed to convict him by a

preponderance of the evidence. Specifically, he contends that there was no physical proof,

nor evidence to preponderate in favor of his guilt. TDOC Disciplinary Policy § 502.01(IV)(I)

defines “preponderance of evidence” as “[t]he amount of evidence necessary for a party to

prevail at the disciplinary hearing. The degree of proof which best accords with reason and

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probability and is more probable than not.” Under the TDOC Disciplinary Policy, therefore,

preponderance of the evidence means some degree of evidence that supports a finding that

the inmate‟s guilt is “more probable than not.” In addition, Mr. Walton contends that the

absence of the physical evidence, i.e., the cigarette, negates the Disciplinary Board‟s finding

of guilt. We disagree. TDOC Disciplinary Policy § 502.01(VI)(L)(4)(c) affords an inmate,

who pleads not guilty, “[t]o have the evidence against him/her presented first,” and instructs

that the “board/hearing officer shall consider all evidence which it finds to be reliable,

whether or not such evidence would be admissible in a court of law.” However, the TDOC

policies do not specifically require physical evidence. Here, Sergeant Oliver testified that the

cigarette was flushed down the toilet by Mr. Walton‟s cellmate. Accordingly, the cigarette

was not available for the hearing. Rather, the Board relied on the sworn testimony of the

reporting official. Again, the reviewing court does not re-weigh the evidence. The reporting

official‟s testimony, however, is sufficient to satisfy the “preponderance of evidence”

definition set out in the TDOC Disciplinary Policy. Accordingly, we cannot conclude that

the Board acted “arbitrarily, illegally, or fraudulently” as there was material evidence to

support its conclusion.

Concerning Mr. Walton‟s allegations of some conspiracy, on the part of the CCA

Respondents to harass and retaliate against him by falsifying documents, these arguments

appear to be an attempt to have this Court review the intrinsic correctness of the Board‟s

decision, which is beyond our purview. Robinson v. Clement, 65 S.W.3d 632, 635 (Tenn. Ct.

App. 2001). Furthermore, as discussed above, the CCA Respondents were not proper parties

to Mr. Walton‟s petition. For these reasons, we conclude that Mr. Walton‟s argument

concerning any allegation of conspiracy on the part of the CCA Respondents is not within

our review under the common-law writ of certiorari.

D. Due Process

To the extent that Mr. Walton is basing his arbitrariness and illegality claim on alleged

procedural due process violations, he must first allege that he has been deprived of an interest

entitled to protection under the Due Process Clause of the Fourteenth Amendment. Rowe v.

Bd. of Educ., 938 S.W.2d 351, 354 (Tenn. 1996); Armstrong v. Dep’t of Veterans Affairs,

959 S.W.2d 595, 597-98 (Tenn. Ct. App. 1997). Disciplinary proceedings are an ordinary

part of prison life. The United States Supreme Court has held that a prisoner‟s due process

rights are implicated only when a disciplinary action imposes “atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life,” Sandin v. Conner,

515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995), that results in a “major

disruption” of the prisoner‟s environment. Sandin v. Conner, 515 U.S. at 486, 115 S.Ct. at

2301.

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Tennessee has adopted the Sandin v. Conner rationale with regard to appeals from

prison disciplinary decisions. Henderson v. Lutche, 938 S.W.2d 428, 430-31 (Tenn. Ct. App.

1996). Accordingly, we have previously determined that placement in maximum security,

small fines, loss of good time credits, and loss of prison employment, either separately or in

combination, do not impose a significant enough hardship to trigger due process concerns.

Seals v. Bowlen, No. M1999-00997-COA-R3-CV, 2001 WL 840271, at *6 (Tenn. Ct. App.

July 26, 2001) (holding that placement in maximum security, $5 fine, ten days in punitive

segregation, and loss of one month of good time credits did not violate inmate‟s due process

rights); Buford v. Tenn. Dep’t of Corr., No. M1998-00157-COA-R3-CV, 1999 WL

1015672, at *5 (Tenn. Ct. App. Nov. 10, 1999) (holding that fifteen days punitive

segregation, $4 fine, and four-month package restriction did not violate inmate‟s due process

rights); Blackmon v. Campbell, No. 01A01-9807-CH-00361, 1999 WL 85518, at *2 (Tenn.

Ct. App. Feb. 23, 1999) (holding that removal from a prison job did not violate inmate‟s due

process rights).

Mr. Walton‟s punishment in this case included a $4.00 fine, five days of segregation,

and loss of visitation privileges for three months. Based on the foregoing authority, these

penalties are not atypical or significant enough to trigger due process concerns. Accordingly,

Mr. Walton has failed to state a substantive due process claim upon which relief can be

granted.

V. Conclusion

For the foregoing reasons, we affirm the order of the trial court. The case is remanded

for such further proceedings as may be necessary and are consistent with this opinion. Costs

of the appeal are assessed against the Appellant, Jeffrey Walton. Because Mr. Walton is

proceeding in forma pauperis in this appeal, execution for costs may issue if necessary.

_________________________________

ARNOLD B. GOLDIN, JUDGE

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