Opinion
No. E2008-00894-COA-R3-CV.
Assigned on Briefs, February 26, 2009.
Filed April 21, 2009.
Direct Appeal from the Chancery Court for Johnson County; No. 6004; Hon. G. Richard Johnson, Chancellor.
Judgment of the Chancery Court Affirmed.
Jose Holmes, Mountain City, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General, Michael Moore, Solicitor General, and Pamela S. Lorch, Senior Counsel, Nashville, Tennessee, for appellee.
Herschel Pickens Franks, P.J., delivered the opinion of the Court, in which Charles D. Susano, JR., J., and D. Michael Swiney, J., joined.
OPINION
Plaintiff filed a Petition for a common law writ of certiorari in the Trial Court, charging that the State's Disciplinary Board acted arbitrarily when it failed to follow the requirements of its Uniform Disciplinary Procedures at a hearing wherein plaintiff was charged with conspiracy to violate State law. The Trial Court found the writ to be without merit and on appeal we affirm the Trial Court's Judgment.
This appeal arises out of the denial of a petition for common law writ of certiorari filed by plaintiff who is an inmate in the Northeast Correctional Complex (NECX) in Mountain City, Tennessee. The complaint alleged that the NECX Disciplinary Board (Board) acted arbitrarily when it failed to follow the requirements of the TDOC Uniform Disciplinary Procedures concerning a disciplinary hearing that took place on January 16, 2007 in connection with a charge of conspiracy to violate state law lodged against plaintiff.
The State did not oppose the grant of the writ, and TDOC filed a Motion for Judgment on the record. In response, plaintiff did not argue that a judgment based on the record of the disciplinary board hearing was inappropriate, he merely expounded on his allegations that TDOC had violated its own policies. The Chancellor dismissed the Petition with prejudice, and the order stated that "[t]his cause came to be heard on the petitioner's petition for the common law writ of certiorari and the respondent's motion for judgment on the record and accompanying memorandum of law." The Trial Court provided the following facts and procedural history based on the Disciplinary Board's record:
1. On January 16, 2007 petitioner Jose Holmes appeared before the prison disciplinary board to answer charges that he had conspired with other inmates and one prison employee to smuggle drugs into the prison. At the hearing Mr. Holmes pled not guilty and was allowed to testify.
2. Jerry Lester, a TDOC internal affairs officer, testified against the petitioner stating that petitioner and other inmates mailed packages to an outside party who opened the packages, place contraband inside them, marked the packages undeliverable and returned the packages to the inmates. A confidential letter from Mr. Lester was entered into evidence but was not shown to Mr. Holmes.
3. At the close of the evidence Mr. Holmes was found guilty by the disciplinary board.
4. Mr. Holmes appealed the conviction to the warden and the TDOC commissioner and his appeals were denied. Mr. Holmes then filed his petition for writ of certiorari.
The Trial Court entered the following findings of fact and conclusions of law:
1. Common law writ of certiorari:
a. The proper vehicle for challenging a prison disciplinary action is the common law writ of certiorari. Rhoden v. State Dept. of Correction, 984 S. W. 2d 955, 956 (Tenn.Ct.App. 1998);
b. When performing a certiorari review, a court may only inquire into whether the board ". . . . exceeded its jurisdiction or is acting illegally, fraudulently, or arbitrarily . . . ; the correctness of the board's decision may not be questioned. Powell v. Parole Eligibility Rev. Bd., 879 S.W. 2d 871, 873 (Tenn.Ct.App. 1994).
c. Prison disciplinary boards have a duty to follow their own disciplinary procedures; however, "`minor deviations' from the procedures which do not substantially prejudice the prisoner do not require dismissal of the disciplinary offense." Willis v. Tennessee Dept. of Correction. 113 S. W. 3d 706, 713 (Tenn. 2003). To state a valid claim for relief, the prisoner must demonstrate that the deviations from normal procedures denied him a fair hearing. Jeffries v. Tennessee Dept. of Correction, 108 S.W.3d 862, 873 (Tenn.Ct.App. 2002). (R. Vol. I, pp. 139 — 140).
The Court concluded that none of Mr. Holmes' allegations was supported by the record.
Plaintiff's issues on appeal are:
A. Whether the Trial Court was correct when it denied as moot appellant's motion for judgment on the pleadings?
B. Whether the Trial Court was correct when it dismissed appellant's common-law writ of certiorari petition upon a finding that the disciplinary board did not deviate from the uniform procedures in a manner that denied appellant a fair hearing?
The common-law writ of certiorari is the proper procedural vehicle through which petitioners may seek review of decisions by prison disciplinary boards, parole boards, and other administrative tribunals. Willis v. Tenn. Dep't of Corr., 113 S.W.3d 706, 712 (Tenn. 2003); Rhoden v. State Dep't of Corr., 984 S.W.2d 955, 956 (Tenn.Ct.App. 1998). Review under a common-law writ of certiorari is limited to a determination of whether the disciplinary board exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily. Willis, 113 S.W.3d at 712. Also see, State v. Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980).
Plaintiff had filed a Motion for judgment on the pleadings in the Trial Court, which was accompanied by a statement of undisputed facts and plaintiff's own affidavit. The affidavit and statement of undisputed facts are outside the pleading, and the motion must be considered as a motion for summary judgment. See Tenn. R. Civ. P. 12.03.
Plaintiff contends he was prejudiced when the Trial Court did not give consideration to the motion for summary judgment before dismissing it as moot. Plaintiff has cited several cases, but they differ significantly from the case before us because none of the cases was on a common law writ of certiorari nor did they concern a motion for summary judgment.
The Western Section of this Court has considered on two occasions the issue raised by plaintiff and ruled that the trial court was only under an obligation to review the Disciplinary Board hearing record and determine if the board acted illegally, fraudulently, arbitrarily or outside its jurisdiction and that the trial court was under no obligation to dispose of petitioner's motion for summary judgment before ruling on the petition. Jackson v. Tennessee Dept. of Correction, No. W2005-02240-COA-R3-CV, 2006 WL 1547859 at * 4 (Tenn.Ct.App. June 8, 2006); Phillips v. Tennessee Dept. of Correction, No. W2005-02187-COA-R3-CV, 2006 WL 1752331 at * 2(Tenn.Ct.App. June 28, 2006). The Court of Appeals in both cases observed that it is not appropriate to file a motion for summary judgment when the petitioner has initially filed a petition for writ of certiorari. See the Court's explanation in Jackson at *3.
We hold in was not error for the Trial Court to dismiss the motion for summary judgment as moot, once it determined that plaintiff was not entitled to relief as a review of the record confirmed that the Disciplinary Board had not acted outside its jurisdiction or acted illegally, fraudulently, or capriciously. Once the Trial Court had granted the writ and TDOC had provided the record to the Court, the Court's obligation was to review the record and make a determination on the petition.
Next, plaintiff contends that the Disciplinary Board deviated from the Uniform Disciplinary Procedures on several issues and that this failure to follow the procedures prejudiced him. The Uniform Disciplinary Procedures exist "[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. Tennessee Dept. 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 at * 3.
Plaintiff contends that the Disciplinary Board did not allow him to call witnesses to testify on his behalf and such action was a deviation of Policy 502.01(VI)(E)(3)(d) which provides:
d. The board/hearing officer shall record on a Disciplinary Continuation, CR-1831, specific reason(s) for not permitting the attendance of a witness requested by an inmate.
(1) An inmate who wishes to have witness(es) (inmate or staff) present to testify on his/her behalf at the hearing shall complete an Inmate Witness Request, CR-3511, and submit it to the chairperson/hearing officer at least twenty-four (24) hours prior to the hearing. The chairperson/hearing officer shall indicate on the form whether the inmate's request has been approved or denied and, if a requested witness is denied, the specific reason(s) for not permitting the attendance of the witness requested by an inmate.
(2) If an inmate fails to request a witness on CR-3511 prior to the hearing, the chairperson/hearing officer may still allow the witness to testify. Factors to be considered in making such a decision include the witness, the nature of the witness' testimony and how difficult it would be to obtain the witness' testimony.
(3) An inmate may submit a written witness statement when the personal appearance of a witness has been denied.
The record before us shows by omission that appellant did not make a request to put on a witness to testify in his defense and the Trial Court did not err on this issue. See Keen v. Tennessee Department of Correction, No. M-2007-00632-COA-R3-CV, 2008 WL 539059 at * 5 (Tenn.Ct.App. Feb. 25, 2008).
Next plaintiff contends that the Board deviated from the Uniform Disciplinary Procedures by denying his right to have the reporting officer be present at the hearing and to have the opportunity to cross-examine his accuser. The record reflects that Sergeant Craig Julian, not Special Agent Jerry Lester, was the reporting officer. Accordingly, plaintiff's argument that Special Agent Lester's was required to attend the hearing under Policy 502.01(VI)(E)(3)(c)(4) is without merit. Moreover, there is no evidence in the record that Sergeant Julian was a witness to the infraction or that he possessed information regarding the infraction. We agree with the Trial Court when it concluded that the reporting officer was not required to appear at the hearing and that plaintiff was not prejudiced by his absence.
Plaintiff erroneously points to the policy provision regarding the presence of the reporting officer, but the person he identified was not the reporting officer. Moreover, it is well settled that the constitutional right to confront one's accuser is not applicable under the facts presented. In this connection see, Keen v. Tennessee Department of Correction, No. M-2007-00632-COA-R3-CV, 2008 WL 539059 at * 1 (Tenn.Ct.App. Feb. 25, 2008); see also Sandin v. Connor, 515 U.S. 472, 484 — 486(1995); Willis v. Tenn. Dep't of Correction, 113 S.W.3d 706, 712 (Tenn. 2003).
Next, plaintiff contends that the Board violated Policy 502.01(VI)(E)(3)(e) by admitting into evidence Special Agent Lester's confidential letter without independently verifying or documenting its reliability with form CR-3510. A reading of the policy demonstrates that plaintiff was mistaken in trying to make it applicable to Special Agent Lester and his confidential letter. The policy applies to "testimony from a confidential source whose identity cannot be disclosed due to fear of reprisals". The Special Agent is an employee of TDOC and his identity was no secret and it was included in the report. Further, the Trial Court pointed out that the summary of the proceedings does not reference the confidential letter and there is no evidence in the record that the Board relied on the letter. This claim is without merit.
Plaintiff raises further claims which we have reviewed and we find none of them have any merit. For the foregoing reasons, we affirm the Judgment of the Trial Court and remand, with the cost of the appeal assessed to Jose Holmes.