Bryan R. Hanley v. Turney Center Disciplinary Board

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 4, 2016

BRYAN R. HANLEY v. TURNEY CENTER DISCIPLINARY BOARD, ET

AL.

Appeal from the Chancery Court for Hickman County

No. 15-CV-5637 Joseph Woodruff, Judge

___________________________________

No. M2016-01223-COA-R3-CV – Filed November 30, 2016

___________________________________

An inmate was found guilty of possession of a deadly weapon when two knives were

found in the door of his cell. After exhausting his administrative remedies, the inmate

petitioned for a common law writ of certiorari asserting several issues relating to

violations of due process and the Uniform Disciplinary Procedures. The trial court

granted his petition, denied his discovery request, and dismissed the writ of certiorari.

The inmate now appeals. Discerning no error, we affirm.

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

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which CHARLES D.

SUSANO, JR., joined. RICHARD H. DINKINS, JJ., filed a dissenting opinion.

Bryan R. Hanley, Only, Tennessee, Pro Se.

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

General; Madeline Bertasi Brough, Assistant Attorney General, for the appellees, Turney

Center Disciplinary Board, D. Epley, Johnny Qualls, Louanne Dickson, Debra Johnson,

Derrick D. Schofield.

OPINION

BACKGROUND

On August 4, 2015, Corporal Robert Story (“Corporal Story”) and Officer Clint

Zyla (“Officer Zyla”) found two homemade knives in the door of cell 230 of Unit 2A

located at the Turney Center Industrial Complex (“TCIX” or “the prison”).1 The prison

is a division of the Tennessee Department of Correction (“TDOC”). On the same day,

Petitioner/Appellant Bryan Hanley (“Mr. Hanley”), an inmate of the prison and resident

of the cell at issue since 2012, was served with a disciplinary write-up for the offense of

possession of a deadly weapon.2 The incident report describes the offense as follows:

ON 08/04/15 AT 12:15PM A SEARCH OF 2A 230 WAS PERFORMED

BY CORPORAL ROBERT STORY AND OFFICER CLINT ZYLA.

TWO HOMEMADE KNIVES WERE REMOVED FROM INSIDE THE

DOOR. ONE ICEPICK STYLE 5″ LONG AND ONE FLAT METAL

SHARPENED TO A POINT 9″ LONG. INMATES GREGORY SNOW . .

. AND INMATE BR[Y]AN HANLEY . . . ARE ASSIGNED TO THIS

CELL AND ARE BEING CHARGED WITH POSSESSION OF A

DEADLY WEAPON AND MOVED TO UNIT FIVE PENDING

HEARING. . . . .

Mr. Hanley‟s disciplinary hearing was held on August 12, 2015, before the

Respondent/Appellee Turney Center Disciplinary Board (“disciplinary board”). A

disciplinary hearing report included in the record indicates that Mr. Hanley agreed to

waive the right to have the reporting official, Corporal Story, present, that the case had

been previously continued at Mr. Hanley‟s request, that Mr. Hanley was assisted by an

inmate advisor, and that the “inmate or inmate advisor had adequate time to prepare

defense.” Further, the hearing report indicated that Mr. Hanley called one witness:

Duane Brooks. According to the hearing report, Mr. Hanley asserted that he had not been

the subject of a disciplinary action in twenty-one years and that the knives belonged to a

previous occupant of his cell. The disciplinary board found Mr. Hanley guilty of the

charged offense based on “report” and “evidence presented of [two] knives found in the

door of [Mr.] Hanley‟s cell.” The disciplinary board imposed a $5.00 fine, a twelve

month package restriction, ten days of punitive segregation to serve beyond the time

already served while awaiting the hearing, and a three month reduction in prisoner

sentence reduction credits.

On August 16, 2015, Mr. Hanley filed an appeal to the Warden, arguing that the

knives found inside his cell door were not his. Mr. Hanley contended the following: (1)

that “numerous staff members [spoke] on [his] behalf and his character”; (2) that he had

never been the subject of a disciplinary action in his twenty-one years of incarceration;

(3) that the cell doors were not inspected prior to his occupation; (4) that the only cell

1

Although Mr. Hanley alleges in his brief that Corporal Story and Officer Zyla received

confidential information that there were knives located in the door of his cell, the incident report mentions

no such informant.

2

Mr. Hanley‟s cell mate, Gregory Snow, was also charged.

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searched was his, based on a confidential informant who could have been the one

responsible; and (5) that inmate Brooks testified that he “heard the [knives] found in the

door belonged to the previous occupants of the cell.” On August 20, 2015, the Warden

affirmed the ruling of the disciplinary board, finding that “[n]o violations of disciplinary

procedures were cited or ascertained,” “[i]nmate has been assigned to the cell for multiple

number [of] years,” and “[t]he knives wer[e] relativ[e]ly new.”

On August 27, 2015, Mr. Hanley filed an appeal to the Commissioner of TDOC,

arguing that “Section I(J)(7)”3 of TCIX Policy 506.06 requires all vacant cells to be

searched prior to its occupation by a new inmate. Mr. Hanley asserted that during Mr.

Snow‟s hearing on the same issue, Corporal Story admitted that this policy is not

typically carried out. Mr. Hanley further asserted that the knives were not “new”; rather,

one was slightly rusted and the other was made of stainless steel which “would never rust

in a h[u]ndred years.” According to Mr. Hanley, the stainless steel knife was made out of

the “old dust mop frames” which had been removed from the prison before he moved

into cell 230. Finally, Mr. Hanley contended that he did not possess a special tool to

access the inside of the door but that a previous occupant of the cell, who was a

maintenance worker, did have access to such a tool. On September 17, 2015, the

Commissioner affirmed the ruling of the Warden, concluding that Mr. Hanley failed to

support his allegations that the Warden reached an incorrect decision. The Commissioner

further found no due process violations in the disciplinary proceedings.

On November 16, 2015, Mr. Hanley filed a petition for a writ of certiorari in the

Hickman County Chancery Court, naming the disciplinary board, the Warden of the

prison, the Commissioner of TDOC, and numerous other individuals in their official

capacities. In his petition, Mr. Hanley alleged several issues relating to the disciplinary

board‟s decision, including violations of due process and deviations from the Uniform

Disciplinary Procedures (“UDP”). On January 13, 2016, the disciplinary board filed a

notice that it did not oppose the petition. The trial court granted Mr. Hanley‟s petition for

a writ of certiorari on January 19, 2016, and ordered the record of the disciplinary

proceedings be transmitted to the trial court. The notice of the filing of the certified

disciplinary record was filed on February 19, 2016. TDOC subsequently filed a brief on

March 21, 2016.4 On April 4, Mr. Hanley filed a response brief and a specific request for

production of documents. On May 12, 2016, the disciplinary board filed a response

opposing Mr. Hanley‟s specific request for production of documents. On May 18, 2016,

the trial court denied Mr. Hanley‟s discovery request because the requests were “either

3

In his appellate brief, however, Mr. Hanley indicates that the it is section VI(J)(7) in addition to

the concurrent TDOC Policy 506.06, §VI(I)(3)(b)–(c). However, these sections are not part of the

Uniform Disciplinary Procedures, as discussed infra.

4

The filings for the “Respondent” were either filed in the disciplinary board‟s or TDOC‟s name.

Regardless, both are represented by the Tennessee Attorney General.

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not permissible, not possible, or not needed.” On the same day, the trial court entered a

memorandum and order dismissing Mr. Hanley‟s common law writ of certiorari, finding

that the disciplinary board “did not act illegally, arbitrarily, or exceed its jurisdiction” and

that no due process rights were violated.

ISSUES

As we perceive it, Mr. Hanley essentially makes several arguments under the

umbrella of five broad issues,5 which we have restated as follows:

1. Whether the trial court addressed all of the issues raised by Mr. Hanley, which

implicates this Court‟s subject matter jurisdiction.

2. Whether the trial court abused its discretion by denying his discovery requests.

3. Whether material evidence supports the disciplinary board‟s decision.

4. Whether his due process rights were violated.

5. Whether the disciplinary board acted arbitrarily and illegally in failing to

follow the UDP.

5

The actual issues listed in Mr. Hanley‟s brief are:

1. The trial court erred when it denied [Mr. Hanley] the opportunity to

support his allegations through discovery.

2. The trial court erred when it denied [Mr. Hanley] relief on his Writ of

Certiorari.

3. The disciplinary board acted arbitrarily and illegally in rendering its

decision to find [Mr. Hanley] guilty of the charged offense by relying on

pure supposition. The disciplinary board determined that the shanks

“looked relatively new” and therefore[] were placed in the door relatively

recently.

4. The disciplinary board acted arbitrarily and illegally in rendering its

decision to find [Mr. Hanley] guilty of the offense when the board heard

and received uncontradicted testimony from C[orporal] Robert Story that

the doors are not searched when cell changes are accomplished, even

though TDOC Policy 506.06, VI, I, 3, (b) & (c), and the concurrent

TCIX Policy 506.06-1, J, 7 both require cells to be searched and

inspected before they are occupied by a new inmate.

5. The [disciplinary b]oard acted arbitrarily and illegally in rendering its

decision to find [Mr. Hanley] guilty while ignoring the admitted failure

of institutional staff to follow applicable policies which are mandatory in

nature, thus denying [Mr. Hanley] due process of law and a fair hearing.

6. The [disciplinary b]oard acted arbitrarily and illegally when: 1.) they

did not follow the basic requirements of Due Process during the hearing,

2.) when making a finding of facts and entering those findings into the

record, and 3.) when entering the reasons for their decision.

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STANDARD OF REVIEW

The issues in this case involve the review of a decision by a prison disciplinary

board. As explained by the Tennessee Supreme Court:

The common-law writ of certiorari serves as the proper procedural

vehicle through which prisoners may seek review of decisions by prison

disciplinary boards, parole eligibility review boards, and other similar

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

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

(Tenn. Crim. App. 1994)). By granting the writ, the reviewing court orders

the lower tribunal to file its record so that the court can determine whether

the petitioner is entitled to relief.

Willis v. Tenn. Dept. of Corr., 113 S.W.3d 706, 712 (Tenn. 2003). The Tennessee

Supreme Court reaffirmed the long-standing principal that the standard of review in a

writ of certiorari case is extremely limited:

The judicial review available under a common-law writ of certiorari

is limited to determining whether the entity whose decision is being

reviewed (1) exceeded its jurisdiction, (2) followed an unlawful procedure,

(3) acted illegally, arbitrarily, or fraudulently, or (4) acted without material

evidence to support its decision. Harding Acad. v. Metro[.] Gov’t of

Nashville & Davidson Cnty., 222 S.W.3d at 363; see also Stewart v.

Schofield, 368 S.W.3d 457, 463 (Tenn. 2012). We have explicitly approved

the use of the common-law writ of certiorari 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 at 355 (quoting Willis v. Tenn[.]

Dep’t of Corr., 113 S.W.3d 706, 712 (Tenn. 2003)). However, we have also

held that:

the common law[]writ [of certiorari] . . . may not be resorted to for

the correction of technical or formal errors, not affecting jurisdiction

or power, or for the correction of defects that are not radical,

amounting to an illegality that is fundamental, as distinguished from

an irregularity.

State ex rel. McMorrow v. Hunt, 137 Tenn. 243, 249, 192 S.W. 931, 933

(1917).

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A common-law writ of certiorari proceeding does not empower the

courts to redetermine 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., Stewart v. Schofield, 368 S.W.3d at 465; Arnold v. Tenn[.] Bd. of

Paroles, 956 S.W.2d 478, 480 (Tenn. 1997). Similarly, we have noted that

reviewing courts may not reweigh the evidence or substitute their judgment

for the judgment of the entity whose decision is being reviewed. See, e.g.,

State v. Lane, 254 S.W.3d at 355 (quoting Robinson v. Clement, 65

S.W.3d at 635); Harding Acad. v. Metro[.] Gov’t of Nashville & Davidson

Cnty., 222 S.W.3d at 363.

Heyne v. Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 729 (Tenn. 2012). “In certiorari

proceedings, judicial review is generally limited to the record developed by the tribunal

below.” Jeffries v. Tenn. Dep’t of Corr., 108 S.W.3d 862, 873 (Tenn. Ct. App. 2002).

As succinctly 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 Rev. Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994).

Accordingly, we consider Mr. Hanley‟s arguments with these limitations in mind.

DISCUSSION

As an initial matter, we note that Mr. Hanley is proceeding pro se in this appeal as

he did throughout the proceedings before the disciplinary board and in the trial court. “It

is well settled that pro se litigants must comply with the same standards to which lawyers

must adhere.” Watson v. City of Jackson, 448 S.W.3d 919, 926 (Tenn. Ct. App. 2014).

As explained by this Court:

Parties who decide to represent themselves are entitled to fair and equal

treatment by the courts. The courts should take into account that many pro

se litigants have no legal training and little familiarity with the judicial

system. However, the courts must also be mindful of the boundary between

fairness to a pro se litigant and unfairness to the pro se litigant‟s adversary.

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Thus, the courts must not excuse pro se litigants from complying with the

same substantive and procedural rules that represented parties are expected

to observe.

Jackson v. Lanphere, No. M2010-01401-COA-R3-CV, 2011 WL 3566978, at *3 (Tenn.

Ct. App. Aug. 12, 2011) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct.

App. 2003)).

Subject Matter Jurisdiction

We first address whether this Court has appellate jurisdiction over this matter. Mr.

Hanley argues that the trial court failed to “address all of the issues presented” by him;

instead, the trial court “only peripherally addressed the issues presented” in his trial court

brief. Because Mr. Hanley‟s argument questions whether all of the claims raised in the

trial court were actually adjudicated, it implicates this Court‟s subject matter jurisdiction.

Tennessee Rule of Appellate Procedure 13(b) requires appellate courts to “consider

whether the . . . appellate court ha[s] jurisdiction over the subject matter, whether or not

presented for review.” See Toms v. Toms, 98 S.W.3d 140, 143 (Tenn. 2003) (“Appellate

courts must address the issue of subject matter jurisdiction even if the issue is not raised .

. . .”). Subject matter jurisdiction concerns a court‟s authority to hear a particular

controversy. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). “Subject matter

jurisdiction must be conferred by statute or by the Tennessee Constitution; „the parties

cannot confer it by appearance, plea, consent, silence, or waiver.‟” Fed. Nat’l Mortg.

Ass’n v. Quarles, No. M2015-01620-COA-R3-CV, 2016 WL 5723957, at *5 (Tenn. Ct.

App. Sept. 30, 2016) (quoting Johnson v. Hopkins, 432 S.W.3d 840, 843–44 (Tenn.

2013)). Rule 12.02 of the Tennessee Rules of Civil Procedure states that lack of

jurisdiction over subject matter is grounds for dismissal. Tenn. R. Civ. P. 12.02(1).

Appellate courts review the issue of subject matter jurisdiction de novo without a

presumption of correctness. See Chapman v. DaVita, Inc., 380 S.W.3d 710, 712–13

(Tenn. 2012).

Rule 3(a) of the Tennessee Rules of Appellate Procedure states that “every final

judgment entered by a trial court from which an appeal lies to the . . . Court of Appeals is

appealable as of right.” Tenn. R. App. P. 3(a). “To constitute a final judgment, the

judgment must adjudicate all of the claims between the parties.” Irwin v. Tenn. Dep’t of

Corr., 244 S.W.3d 832, 834 (Tenn. Ct. App. 2007) (citing Rector v. Halliburton, No.

M1999-02802-COA-R3-CV, 2003 WL 535924, at *2 (Tenn. Ct. App. Feb. 26, 2003)).

Therefore, if “multiple claims for relief are involved in an action, any order that

adjudicates fewer than all the claims . . . is not enforceable or appealable.” Tenn. R. App.

P. 3(a). Where a trial court order dismissing an inmate‟s petition for a writ of certiorari

fails to address all of the inmate‟s claims, the order is not a final appealable order. See

Irwin, 244 S.W.3d 837 (holding that trial court‟s order dismissing inmate‟s petition for a

writ of certiorari did not adjudicate all claims and thus was not a final, appealable

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judgment when it failed to address all of the inmate‟s claims). However, this Court may

also acquire appellate jurisdiction even where the trial court does not adjudicate all

claims raised if the trial court makes the order final pursuant to Rule 54.02 of the

Tennessee Rules of Civil Procedure. Tenn. R. Civ. P. 54.02 (“[T]he [trial c]ourt . . . may

direct the entry of a final judgment as to one or more but fewer than all of the claims or

parties only upon an express determination that there is no just reason for delay and upon

an express direction for the entry of judgment.”). Where the trial court fails to either

address all of the inmate‟s claims or make the order final pursuant to Rule 54.02, the

proper remedy is to dismiss the appeal under Rule 3 for lack of appellate jurisdiction and

remand, directing the trial court to address the claims raised by the inmate.

We will not tax the length of this Opinion with an examination of each argument

raised by Mr. Hanley and the trial court‟s corresponding decision either in favor of or

against that argument. Suffice it to say, we have reviewed the claims raised in this case as

well as the trial court‟s order and find no claims left outstanding that would deprive this

Court of subject matter jurisdiction to consider this appeal. In this case, Mr. Hanley

sought a writ of certiorari regarding the decision of the disciplinary board. As discussed

supra, the only avenues of relief from such a decision require that Mr. Hanley show that

the decision was illegal, without authority, or based on a palpable abuse of discretion.

Here, the trial court found that none of these avenues of relief had been shown and

dismissed Mr. Hanley‟s writ of certiorari. Accordingly, the trial court fully adjudicated

all of the claims in this case.

Discovery Requests

Mr. Hanley next takes issue with the trial court‟s denial of his discovery requests.

As previously discussed, judicial review under a common-law writ of certiorari is

typically limited to the record made before the board or agency. See Jeffries, 108

S.W.3d 862 at 873. However, “the trial court may permit the introduction of additional

evidence on the issue of whether the board or agency exceeded its jurisdiction[] or acted

illegally, capriciously, or arbitrarily.” Adams v. Tenn. Dep’t of Corr., No. M2013-00370-

COA-R3-CV, 2014 WL 4536557, at *3 (Tenn. Ct. App. Sept. 11, 2014) (emphasis

added) (citing Hunter v. Metro. Bd. of Zoning Appeals, No. M2002-00752-COA-R3-

CV, 2004 WL 315060, *2 (Tenn. Ct. App. Feb. 17, 2004)); see also Cooper v.

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

659 S.W.2d 361, 363 (Tenn. 1983). Thus, we review the trial court‟s discovery decisions

on appeal for an abuse of discretion. Johnston v. Metro. Gov’t of Nashville & Davidson

Cnty., 320 S.W.3d 299, 315 (Tenn. Ct. App. 2009) (citing Frye v. St. Thomas Health

Servs., 227 S.W.3d 595, 600 (Tenn. Ct. App. 2007)).

The disciplinary board does not deny that discovery may be permitted in certain

circumstances but maintains that the trial court properly denied Mr. Hanley‟s discovery

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requests because the documents were not relevant to the issue of whether the disciplinary

board exceeded its jurisdiction or acted arbitrarily, illegally, or capriciously.6 We agree.

In this case, the trial court by order of May 18, 2016, denied Mr. Hanley‟s specific

requests for production of documents because the requests “are either not permissible, not

possible, or not needed.” Mr. Hanley, however, argues that the additional evidence he

sought through discovery would be relevant to the issue of whether the disciplinary board

“denied [him] the opportunity to present a defense, refused to consider relevant and

germane evidence, refused to address the violations of its own policies by its agents

which resulted in the disciplinary proceedings, and otherwise acted illegally,

capriciously, and arbitrarily.” The documents that Mr. Hanley requested include: (1)

records documenting all cell changes conducted on May 29–31, 2013, at the prison; (2)

records documenting searches conducted on any cells in several prison units on May 31,

2013; (3) a copy of the minutes from the prison inmate council meeting for August 2015;

(4) records listing the names and TDOC numbers of all inmates assigned to cell 230 of

unit 2A from January 2010 through May 31, 2012; (5) inmate disciplinary records

generated for the inmates assigned to cell 230 of unit 2A from January 2010 through May

31, 2012; (6) the gang status of the inmates assigned to cell 230 of unit 2A from January

2010 through May 31, 2012; (7) a copy of memoranda issued by the prison

administrative staff which directed prison employees to gather and remove all stainless

steel dust mop heads; (8) a copy of documentation regarding all of the information that

Corporal Story received prior to searching Mr. Hanley‟s cell. Essentially, Mr. Hanley

sought to prove that the disciplinary board‟s decision was in error because the discovery

requests would reveal that the knives found in his cell belonged to a prior occupant.

After a thorough review the record, we cannot say that the trial court abused its

discretion in denying Mr. Hanley‟s discovery requests. In the first place, “[t]he rights of

6

Mr. Hanley cites and quotes several cases to support his broad generalization that discovery is

allowed in writ of certiorari cases. See Adams v. Tenn. Dep’t of Corrections, No. M2013-00370-COA-

R3-CV, 2014 WL 4536557 (Tenn. Ct. App. Sept. 11, 2014); Sadler v. Tenn. Bd. of Prob. & Parole, No.

M2001-02341-COA-R3-CV, 2001 WL 1386090 (Tenn. Ct. App. Nov. 8, 2001); Johnston v. Metro.

Gov’t of Nashville & Davidson Cnty., 320 S.W.3d 299 (Tenn. Ct. App. 2009). Although this is generally

true, no prior Tennessee cases have held that discovery is allowed as of right in writ of certiorari cases.

Indeed, the cited cases do not purport to grant inmates an unqualified right to discovery; rather, the cases

resolved issues not directly presented before this Court. See Adams, 2014 WL 4536557, at *3 (reversing

the trial court‟s dismissal of petitioner‟s writ of certiorari while a motion to compel discovery was

pending because its “failure to rule on the pending motion possibly affected the outcome of the

litigation”); Sadler, 2001 WL 1386090, at *1 (recounting the procedural posture of the case wherein the

trial court denied petitioner‟s motion to compel when petitioner never made a proper discovery request

and noted that “petitions for writ of certiorari usually proceed on the record, and that typically, discovery

is not permitted”); Johnston, 320 S.W.3d at 308, 315 (holding that the trial court did not abuse its

discretion in allowing limited discovery while refusing appellants‟ additional discovery requests). Thus,

the cases cited by Appellant do not necessarily support his contention that he should have been allowed

discovery under the circumstances of this case.

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an inmate who has pled „not guilty‟ to the offense which is the subject of the disciplinary

hearing are set forth at TDOC Policy No. 502.01(VI)(L)(4)(c) and do not include the

right to discovery.” Jenkins v. Tenn. Dep’t of Corr., No. M2014-02210-COA-R3-CV,

2016 WL 792423, at *4 n.3 (Tenn. Ct. App. Feb. 29, 2016). In light of the fact that Mr.

Hanley pled not guilty, he is permitted only the following rights at his hearing:

(1) The right to decline to testify. It shall be the burden of the reporting

employee to prove guilt by a preponderance of the evidence.

(2) To have the evidence against him/her presented first. 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.

(3) To cross-examine any witness (except a confidential source) who

testified against him/her and to review all adverse documentary evidence

(except confidential information).

(4) To have the reporting official to the alleged infraction present and

testifying at the hearing. The chairperson/hearing officer may allow the

testimony from the reporting official by speakerphone if they are not on the

premises of the facility at the time of the hearing unless this requirement is

waived by the inmate in writing . . . . By waiving the presence of the

reporting official, the inmate is agreeing to have the statements in the

disciplinary report accepted at the hearing in lieu of testimony. The

chairperson/hearing officer shall advise the inmate of this fact. Even if such

an appearance is waived by the inmate, the employee may appear and

testify at the hearing.

(5) The right to testify in his/her own behalf after all evidence has been

presented.

(6) The right to present the testimony of relevant witness(es), unless

allowing the witness to appear would pose a threat to institutional safety or

order.

TDOC Policy No. 502.01(VI)(L)(4)(c) (emphasis added). Because Mr. Hanley was not

permitted discovery during his disciplinary hearing, his only recourse would have been to

develop the administrative record through witness testimony.7 Mr. Hanley not only chose

to present only a single witness (Mr. Brooks) but also chose to waive his right to have

Corporal Story present to testify against him. Thus, Mr. Hanley also waived any right to

cross-examine Corporal Story on the issue of prison searches.

7

Mr. Hanley‟s only statement in the disciplinary report hearing summary states: “I‟ve never had

a disciplinary in [twenty-one] years. I don‟t know why this came about. I feel like they have been in there

since the previous occupant.” The statement by Mr. Brooks, the only witness Mr. Hanley called on his

own behalf, states: “I don‟t know who the previous occupants were and I heard it was the ones who lived

there before. He‟s been here a long time. He was my celly and I know he didn‟t do this.”

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Additionally, it is well-settled that in a writ of certiorari case, the reviewing court

is “generally limited to the record developed by the tribunal below.” Jeffries, 108 S.W.3d

at 873 n.12. The record before us, as in the trial court, contains no indication that the

disciplinary board was presented with any allegations or evidence of prison employees‟

failure to search cells before housing a new inmate.8 Mr. Hanley‟s discovery requests

appear to be an attempt to supplement the record with additional evidence to show: (1)

that the prison did not follow policies concerning searches of cells when inmates are

relocated; and (2) in the absence of such a search, the knives found in Mr. Hanley‟s cell

may have been left by its previous occupants. Even if Mr. Hanley were permitted the

documents he requested, however, he simply cannot establish that the disciplinary board

“refused” to consider relevant evidence or to address violations of its own policies, where

no evidence to that effect was in any way presented to the disciplinary board.

Furthermore, even where extrinsic evidence is permissible, its only purpose is to show

procedural irregularities not reflected in the record, showing “fraud, corruption, or

whether the tribunal exceeded its jurisdiction or otherwise acted illegally.” Id. Here, the

documents requested do not relate to the propriety of the disciplinary proceedings but,

rather, to the intrinsic correctness of the disciplinary board‟s decision based on what Mr.

Hanley asserts was a flawed investigation. Because this issue was in no way raised in the

disciplinary proceedings and the documents are simply not admissible to contradict the

disciplinary board‟s factual findings, we cannot conclude that the trial court abused its

discretion in denying Mr. Hanley‟s discovery requests.

Material Evidence to Support the Disciplinary Board’s Decision

We next consider whether the Mr. Hanley‟s conviction on the charge of

possession of a deadly weapon was supported by sufficient evidence. As previously

discussed, review under a writ of certiorari is limited to whether the lower board

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

is any material evidence to support the board‟s findings. Walton v. Tenn. Dep’t of Corr.,

No. W2015-01336-COA-R3-CV, 2016 WL 3078838, at *6 (Tenn. Ct. App. May 23,

2016) (citing Watts v. Civ. Serv. Bd. of Columbia, 606 S.W.2d 274, 276–77 (Tenn.

1980)). As noted by the Tennessee Supreme Court:

Ascertaining whether a record contains material evidence to support

a board‟s decision is a question of law. Leonard Plating Co. v. Metro[.]

Gov’t of Nashville & Davidson Cnty., 213 S.W.3d [898,] 904 [Tenn. Ct.

App. 2006]. For the purpose of this inquiry, “material evidence” is relevant

evidence that a reasonable person would accept as adequate to support a

rational conclusion. Hedgepath v. Norton, 839 S.W.2d 416, 421 (Tenn. Ct.

App. 1992) (quoting Pace v. Garbage Disposal Dist., 54 Tenn. App. 263,

8

Instead, this evidence appears to have been presented in a separate disciplinary proceeding

involving Mr. Snow, Mr. Hanley‟s roommate.

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267, 390 S.W.2d 461, 463 (1965)). The amount of material evidence

required to support an agency‟s decision “must exceed a scintilla of

evidence but may be less than a preponderance of the evidence.” Leonard

Plating Co. v. Metro[.] Gov’t of Nashville & Davidson Cnty., 213 S.W.3d

at 904. Because the sufficiency of the material evidence in a common-law

writ of certiorari proceeding is a question of law, the courts must review the

record de novo without presuming that the findings are correct. Lafferty v.

City of Winchester, 46 S.W.3d 752, 759 (Tenn. Ct. App. 2000).

Heyne v. Metro. Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 738–39 (Tenn. 2012).

A disciplinary charge against an inmate must be proven by a preponderance of the

evidence, which is “[t]he degree of proof which best accords with reason and probability

and is more probable than not.” TDOC Policy No. 502.01(IV)(I). Here, Mr. Hanley‟s

disciplinary conviction for possession of a deadly weapon was based on the two knives

found in his cell door and Corporal Story‟s report. Mr. Hanley called one witness, Mr.

Brooks, to testify on his behalf. He was also afforded the opportunity to have Corporal

Story present at the hearing but waived this right.

As previously discussed, however, this 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, 160 S.W.3d

at 520 n.2; Cooper v. Williamson Cnty. Bd. of Educ., 746 S.W.2d 176, 179 (Tenn. 1987).

“It is the function of the prison disciplinary board in the first instance to evaluate the

credibility of the witnesses who testify at the hearing.” Dobbins v. Tenn. Dep’t of

Correction, No. M2010-00009-COA-R3-CV, 2010 WL 4225822, at *6 (Tenn. Ct. App.

Oct. 25, 2010) (citing State v. Brazelton, No. M1999-02477-CCA-R3-CD, 2000 WL

1717560, at *3 (Tenn. Crim. App. 2000)). Thus, this Court is required to defer to the

disciplinary board‟s determinations of witness credibility. Id.

We conclude that the disciplinary board had material evidence from which to find

Mr. Hanley guilty of possession of weapons. At Mr. Hanley‟s disciplinary hearing, the

disciplinary board had before it the two knives found in Mr. Hanley‟s cell door, Corporal

Story‟s incident report, Mr. Hanley‟s statement, and Mr. Brooks‟s statement. The

disciplinary board was able to observe the knives first-hand and chose to credit Corporal

Story‟s report over the testimony of Mr. Hanley and Mr. Brooks.

Mr. Hanley‟s argument that the Warden erred in relying on the “relativ[e]

new[ness]” of the knives is also unavailing in this appeal. Here, the two knives

undisputedly found during the August 2015 search were presented both to the

disciplinary board and the Warden. Based upon their appearance, the Warden specifically

found that the knives could not have been placed in the cell door prior to 2012 when Mr.

Hanley began residing in the cell. First, we note that Mr. Hanley‟s argument regarding

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the disciplinary board‟s and the Warden‟s findings about the condition of the knives

relative to the timing of their likely placement is an attack on the intrinsic correctness of

the underlying ruling. As previously discussed, however, we have no authority to inquire

into the intrinsic correctness of the agency‟s decision. See Seals v. Bowlen, No. M1999-

00997-COA-R3-CV, 2001 WL 840271, at *9 (Tenn. Ct. App. July 26, 2001). Even if we

were permitted to consider this argument, Mr. Hanley has presented no evidence from

which we could conclude that the Warden erred on this issue. The record on appeal

contains no pictures of the knives or descriptions thereof to contradict the Warden‟s

finding other than Mr. Hanley‟s unsubstantiated assertions. It is well-settled, however,

that unsupported, unsworn statements are not evidence. See, e.g., Dayhoff v. Cathey, No.

W2011-02498-COA-R3-JV, 2012 WL 5378090, at *3 (Tenn. Ct. App. Nov. 1, 2012); In

re D.M.H., No. W2006-00270-COA-R3-JV, 2006 WL 3216306, at *7 (Tenn. Ct. App.

Nov. 8, 2006). Accordingly, this argument is, respectfully, without merit.

Still, Mr. Hanley argues that the disciplinary board acted arbitrarily and illegally in

rendering its decision to find him guilty of the offense when the disciplinary board

purportedly heard and received uncontradicted testimony from Corporal Story that the

doors are not searched when cell changes are accomplished in violation of TDOC Policy

and TCIX policy. This argument is, respectfully, unavailing. As discussed supra, the

record is devoid of any evidence that Corporal Story actually testified at Mr. Hanley‟s

hearing before the disciplinary board. Indeed, the hearing summary contains a statement

purported to be signed by Mr. Hanley waiving the right to have the reporting official

present. There is no indication at all that this piece of evidence was presented to the

disciplinary board at the August 12, 2015 disciplinary hearing. The first mention of it in

the record can be found in Mr. Hanley‟s disciplinary report appeal to the Commissioner

on August 27, 2015, in which he alleged that “[d]uring the hearing of [Mr.] Snow [Mr.

Hanley’s cellmate] on this issue, C[orporal] Story was asked specifically if [the prison

employees] search inside the [cells‟] doors and when a cell becomes empty before a new

inmate is assigned and his testimony was „[w]e do NOT typically do this.‟”

Under the UDP, “[b]y waiving the presence of the reporting official, the inmate is

agreeing to have the statements in the disciplinary report accepted at the hearing in lieu of

testimony.” TDOC Policy No. 502.01(VI)(L)(4)(c)(4). Because Mr. Hanley waived his

right to have Corporal Story present to testify against him, Mr. Hanley also waived the

right to cross-examine Corporal Story and thereby develop the record in his case.

Despite Mr. Hanley‟s contention otherwise, the record before us simply contains no such

testimony.9 Even assuming arguendo that the disciplinary board did hear this testimony

9

Thus, we pretermit any other issues raised based on Mr. Hanley‟s allegations of the disciplinary

board‟s failure to consider Corporal Story‟s testimony that prison employees failed to search cell doors

prior to the occupation of a new inmate, including any violations of due process and deviations from the

UDP.

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during Mr. Snow‟s hearing, the board is entitled to consider only the evidence presented

during Mr. Hanley‟s hearing for purposes of sanctioning him.10 See TDOC Policy No.

502.01(VI)(L)(4)(k) (“The disciplinary board . . . shall base the decision solely on the

information obtained during the hearing process, including staff reports, the statements of

the inmate charged as well as his/her advisor, and any other evidence derived from

witnesses and documents.”). Thus, we cannot say that the disciplinary board acted

arbitrarily and illegally by only considering the evidence presented to it at the hearing.

Therefore, we conclude that the evidence of the two knives found in Mr. Hanley‟s

cell door and Corporal Story‟s report stating that the knives were found in Mr. Hanley‟s

cell door constitute material evidence to support the conviction of possession of a deadly

weapon.

Due Process

Mr. Hanley next alleges denial of due process rights. Prisoners are entitled to the

protections of due process, depending on the circumstances:

The Fourteenth Amendment‟s Due Process Clause protects

individuals by guaranteeing fair procedure. Littles v. Campbell, 97 S.W.3d

568, 572 (Tenn. Ct. App. 2002) (citing Zinermon v. Burch, 494 U.S. 113,

110 S. Ct. 975, 108 L. Ed. 2d 100 (1990)). “„In procedural due process

claims, the deprivation by state action of a constitutionally protected

interest in „life, liberty, or property‟ is not itself unconstitutional; what is

unconstitutional is the deprivation of such an interest without due process

of law.‟” Id. (quoting Zinermon, 494 U.S. at 125). A claim is not

actionable unless the State fails to provide due process; thus, we must first

determine what process is due, if any, and whether such process has been

afforded. Id. (citation omitted).

The United States Supreme Court has stated that only those

restraints to a prisoner‟s liberty interest which impose an “atypical and

significant hardship on the inmate in relation to the ordinary incidents of

prison life” are actionable under the Due Process clause. Sandin v. Conner,

515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). “Once a

court determines that the restraints imposed upon the prisoner's liberty are

indeed „atypical‟ and a „significant hardship,‟ the court must next determine

what type of process is constitutionally required.” Littles, 97 S.W.3d at 572.

Pursuant to Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed.

10

We note that Mr. Hanley never argued res judicata, collateral estoppel, or any other related

theories entitling him to use evidence presented and established at another inmate‟s hearing. We also

decline to consider whether he would have succeeded on these theories.

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2d 935 (1974), the Due Process Clause requires that inmates subject to

disciplinary proceedings be afforded: “(1) written notice of any charges

made against the prisoner at least twenty-four (24) hours before a hearing is

held; (2) the opportunity to present witnesses; (3) an impartial tribunal; and

(4) a written statement from the tribunal indicating what evidence the

factfinder relied upon and the reasons for the disciplinary actions taken.”

[Littles, 97 S.W.3d at 573–74] (citing Nevills v. S. Cent. Corr. Disciplinary

Bd., No. M2000-02324-COA-R3-CV, 2001 WL 1117066, at *13 (Tenn. Ct.

App. Sept. 25, 2001)).

Patterson v. Tenn. Dep’t of Corr., No. W2009-01733-COA-R3-CV, 2010 WL 1565535,

at *2 (Tenn. Ct. App. Apr. 20, 2010).

In this case, Mr. Hanley was found guilty of the charge of possession of a deadly

weapon. Among the penalties the disciplinary board imposed was the loss of three

months of Mr. Hanley‟s prisoner sentence reduction credits. “[T]he loss of previously

earned sentence reduction credits has been found to implicate an interest sufficient to

invoke due process.” Seals v. Bowlen, No. M1999-00997-COA-R3-CV, 2001 WL

840271, at *6 (Tenn. Ct .App. July 26, 2001) (citing Greene v. Tenn. Dep’t of Corr., No.

01A01-9608-CH-00370, 1998 WL 382204, at *3 (Tenn. Ct. App. July 10, 1998)

(footnote omitted)); see also Garrard v. Tenn. Dep’t of Corr., No. M2013-01525-COA-

R3-CV, 2014 WL 1887298, at *7 (Tenn. Ct. App. May 8, 2014) (concluding that the loss

of three months of prisoner sentence reduction credits entitled appellant to due process

protections). Because Mr. Hanley‟s liberty interests have been implicated in this case, he

was entitled to the due process protections outlined above. See Himes v. Tenn. Dep’t of

Corr., No. M2011-02546-COA-R3-CV, 2012 WL 7170480, at *4 (Tenn. Ct. App. Dec. 6,

2012) (finding that the loss of sentence reduction credits was sufficient to implicate due

process).

Mr. Hanley argues that his due process rights were violated because the

disciplinary board failed to include in its hearing report “a written statement from the

tribunal indicating what evidence the factfinder relied upon and the reasons for the

disciplinary actions taken.” Littles, 97 S.W.3d at 573–74. As explained by the United

States Supreme Court:

[T]here must be a “written statement by the factfinders as to the evidence

relied on and reasons” for the disciplinary action . . . . Written records of

proceedings will thus protect the inmate against collateral consequences

based on a misunderstanding of the nature of the original proceeding.

Further, as to the disciplinary action itself, the provision for a written record

helps to insure that administrators, faced with possible scrutiny by state

officials and the public, and perhaps even the courts, where fundamental

constitutional rights may have been abridged, will act fairly. Without

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written records, the inmate will be at a severe disadvantage in propounding

his own cause to or defending himself from others. It may be that there will

be occasions when personal or institutional safety is so implicated that the

statement may properly exclude certain items of evidence, but in that event

the statement should indicate the fact of the omission. Otherwise, we

perceive no conceivable rehabilitative objective or prospect of prison

disruption that can flow from the requirement of these statements.

Wolff, 418 U.S. at 565–65 (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct.

2593, 2604 (1972)).

The disciplinary record contains a summary of the disciplinary hearing. This

summary includes a section wherein the disciplinary hearing members are to include such

a written statement. In the portion of the form in which the disciplinary hearing panel is

to state its “findings of fact and specific evidence relied on to support those findings,” the

summary states “[g]uilty based on report + evidence presented of [two] knives found in

the door of [Mr.] Hanley‟s cell.” Further, in the portion of the form in which the

disciplinary board is to state its “disposition and a statement of the reasons which

support[] that decision” the summary states the penalty that will be assessed to Mr. Mr.

Hanley. Although succinct, the hearing summary does contain some basis for the

disciplinary board‟s decision to convict Mr. Hanley. Compare Garrard, 2014 WL

1887298, at *10 (holding that petitioner‟s due process rights were violated when

“[n]othing in the summary indicates that the disciplinary hearing panel made any findings

of fact or offered any of its reasons for its decision”), with Williams v. Little, No. M2010-

02241-COA-R3CV, 2011 WL 4058897, at *4 (Tenn. Ct. App. Sept. 13, 2011) (finding

that the contents of the hearing summary was adequate when it indicated that the

disciplinary board‟s decision was based on information obtained during an investigation

of a state employee who brought contraband into the prison and identified petitioner as

the prisoner to whom he brought the contraband) and Schaffer v. Tenn. Dep’t of Corr.,

No. M2010-01742-COA-R3-CV, 2011 WL 1842971, at *5 (Tenn. Ct. App. May 12,

2011) (concluding that due process requirements were satisfied when the disciplinary

board provided only “findings of fact and specific evidence relied upon to support those

findings” in its completed disciplinary report hearing summary). Accordingly, although

we do not encourage the practice utilized in this case as it provides only a skeletal basis

for the disciplinary board‟s decision, the procedure utilized by the disciplinary board did

not violate Mr. Hanley‟s due process rights.

Uniform Disciplinary Procedures

Finally, we will consider Mr. Hanley‟s argument relating to whether the

disciplinary board otherwise acted arbitrarily or illegally in failing to follow TDOC‟s

UDP. According to this Court:

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[E]ven if a state prisoner is not entitled to due process protections in a

disciplinary proceeding, the inmate may nevertheless assert a claim under a

common-law writ of certiorari that the prison disciplinary board otherwise

acted illegally or arbitrarily in failing to follow TDOC‟s [UDP]. Irwin v.

Tenn. Dep’t of Corr., 244 S.W.3d 832, 835 (Tenn. Ct. App. Aug. 13, 2007)

(citing Willis, 113 S.W.3d at 713).

Patterson, 2010 WL 1565535, at *2. “A prisoner seeking judicial review of a disciplinary

proceeding has the burden to prove „that the disciplinary board failed to follow the [UDP]

and this failure substantially prejudiced the petitioner.‟” Walton, 2016 WL 3078838, at

*6 (quoting Willis, 113 S.W.3d at 713). The UDP exists “[t]o provide for the fair and

impartial determination and resolution of all disciplinary charges placed against inmates.”

TDOC Policy No. 502.01(II); Meeks v. Tenn. Dep’t of Corr., No. M-2007-01116-COA-

R3-CV, 2008 WL 2078054, at *3 (Tenn. Ct. App. May, 15, 2008). Minor deviations from

the procedures will not warrant dismissal of the disciplinary action unless the prisoner

demonstrates “substantial prejudice as a result and the error would have affected the

disposition of the case.” TDOC Policy No. 502.01(V); Meeks, 2008 WL 2078054, at *3.

“To trigger judicial relief, a departure from the [UDP] must effectively deny the prisoner

a fair hearing.” Jeffries, 108 S.W.3d at 873. Thus, an inmate may be entitled to relief

under a common law writ of certiorari if he demonstrates that the disciplinary board

failed to adhere to the UDP and that its failure to do so resulted in substantial prejudice to

the inmate. Irwin v. Tenn. Dep’t of Corr., 244 S.W.3d 832, 835 (Tenn. Ct. App. 2007).

Mr. Hanley mainly takes issue with the disciplinary board‟s failure to verify the

informant‟s reliability as required by the UDP.11 Under the UDP:

Whenever confidential information or confidential security sensitive

evidence is utilized by the disciplinary hearing officer/chairperson as a

basis for its decision, the TDOC Contemporaneous Record of Confidential

Informant Reliability, CR-3510, shall be completed to document the factual

basis for the disciplinary hearing officer‟s/chairperson‟s finding that the

informant and/or security sensitive evidence was reliable. At privately

managed facilities, the Commissioner‟s designee shall also review the

confidential information and initial the form. This form shall be considered

confidential and kept as a non-public access record in an area designated by

the Warden.

TDOC Policy 502.01, § VI, L, (4)(g).

11

Mr. Hanley also takes issue with the prison‟s failure to conduct searches pursuant to TDOC

Policy 506.06 and the prison‟s local policy 506.06-1. However, because these policies are not part of the

UDP, as previously discussed, any deviations from those policies are not grounds for reversal.

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In this case, the record contains no indication that a confidential informant was

ever involved. Even assuming arguendo that Corporal Story did receive confidential

information, as Mr. Hanley suggests, we fail to see how the disciplinary board deviated

from the UDP when the disciplinary board based its decision to convict Mr. Hanley, not

on the report of a confidential informant, but instead only on Corporal Story‟s report and

the two knives found in the cell door. The UDP requires the completion of a CR-3510

form only when the disciplinary board used the confidential information as a basis for its

decision. As previously discussed, Mr. Hanley‟s conviction was “[b]ased on report +

evidence presented of [two] knives found in the door of [Mr.] Hanley‟s cell.” Thus, we

conclude that the disciplinary board did not act arbitrarily and illegally because it was

under no obligation to complete a CR-3510 form in this case.

CONCLUSION

The judgment of the Hickman County Chancery Court is affirmed and remanded

for further proceedings consistent with this Opinion. Costs of this appeal are taxed to

Appellant, Bryan Hanley, for which execution may issue if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

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