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Burgess v. Turney Center Disciplinary Board

Court of Appeals of Tennessee, Nashville

February 28, 2017

CARTER BURGESS
v.
TURNEY CENTER DISCIPLINARY BOARD, ET AL.

          Assigned on Briefs January 4, 2017

         Appeal from the Chancery Court for Hickman County No. 16-CV-5701 Joseph Woodruff, Judge

         Appellant, an inmate in the custody of the Tennessee Department of Correction, appeals the trial court's dismissal of his petition for a writ of certiorari. Inmate alleges that the Disciplinary Board violated several policies in finding him guilty of the charge of drug possession. The trial court granted the writ of certiorari and, upon review of the record, granted TDOC's motion to dismiss. Inmate appeals. Discerning no error, we affirm.

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

          Carter Burgess, Only, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter, and Charlotte Montiel Davis, Assistant Attorney General, for the appellees, Turney Center Disciplinary Board, Darrell Murphy, Tennessee Department of Correction, and Commissioner, Tennessee Department of Correction.

          Arnold B. Goldin, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S, and John W. McClarty, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         I. Background

         Appellant Carter Burgess is an inmate in the custody of the Tennessee Department of Correction ("TDOC"). On November 4, 2015, Mr. Burgess went before the Turney Center Disciplinary Board (the "Board, " and together with TDOC, Hearing Officer Darrell Murphy, and the Commissioner of TDOC, "Appellees"). Mr. Burgess was charged with one count of drug possession. The charge stemmed from an incident that occurred on November 2, 2015, when Corporal Nicky Herndon was conducting a "fence check." According to the disciplinary report, Corporal Herndon observed Mr. Burgess "hand inmate Christopher Gregory something and inmate Christopher Gregory tucked the item into his pants." Following his observation, Corporal Herndon radioed another guard, and the two performed a search of Mr. Gregory's person. The search revealed "four (4) Suboxone[1] strips inside the zipper part of [Mr. Gregory's] pants." All of the inmates involved were charged with drug possession.

         At the November 4, 2015 hearing before the Board, Mr. Burgess testified that he handed Mr. Gregory two loose razor blades wrapped in a piece of white paper. Mr. Gregory provided a written statement that the Suboxone strips were not given to him by Mr. Burgess. Levi Burnam, another inmate, corroborated Mr. Burgess's statement that he had given Mr. Gregory razor blades. Corporal Herndon testified that he saw Mr. Burgess hand Mr. Gregory something in a clear cellophane packet. After witnessing this exchange, Corporal Herndon called Officer Chris Hammond, who assisted Corporal Herndon in performing a search. The search revealed the Suboxone strips. Corporal Herndon stated that he "didn't let Burgess out of [his] sight until C/O Hammond got there." Officer Hammond testified that he followed Mr. Gregory after the drug exchange, and no one else gave Mr. Gregory anything prior to the search. Both TDOC employees denied finding any razor blades in Mr. Gregory's possession. After weighing the evidence, the Board found Mr. Burgess guilty of drug possession. Mr. Burgess filed an appeal of the Board's decision to the Warden and the Commissioner, both of whom denied the appeal and affirmed the Board's finding of guilt.

         On February 10, 2016, Mr. Burgess filed a petition for common law writ of certiorari in the Chancery Court of Hickman County ("trial court"). In his petition, Mr. Burgess asserted that the Board acted illegally or arbitrarily in three instances: (1) the Board did not satisfy TDOC Policy 502.05(VI)(A)(19); (2) the Board violated TDOC Policy 502.01(VI)(L)(4)(c)(6) concerning witnesses; and (3) the Board did not satisfy the preponderance of the evidence standard in violation of TDOC Policy 502.01(VI)(L)(4)(k)(1). On April 4, 2016, Appellees filed a notice of no opposition to the grant of the petition for writ of certiorari, and the trial court granted Mr. Burgess's petition by order of April 11, 2016. By order of August 15, 2016, the trial court dismissed Mr. Burgess's petition on its finding that the Board had not acted arbitrarily or illegally and had not violated TDOC policy in its proceedings. Mr. Burgess filed a timely notice of appeal to this Court.

         II. Issue

         The sole issue for review is whether the trial court properly dismissed Mr. Burgess's petition ...


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