Assigned on Briefs September 1, 2017
from the Chancery Court for Hickman County No. 16-CV-5773
Joseph A. Woodruff, Judge
Bernard Howard, an inmate at the Turney Center Industrial
Complex, was charged with the disciplinary offense of
defiance. The conduct at issue occurred at the
institution's medical clinic. Howard became angry, used
profanity, and physically struck clinic property. After a
hearing, he was found guilty by "alternate disciplinary
officer" Rachel McCauley. Howard filed a petition for
common law writ of certiorari with the trial court, alleging
that he was denied due process at his hearing. He further
asserted that the governing Uniform Disciplinary Procedures
of the Tennessee Department of Correction (TDOC) were not
followed. He says this resulted in substantial prejudice to
him. The trial court found no due process violation, and
ruled that any deviation from the Uniform Disciplinary
Procedures was minimal and did not result in substantial
prejudice. The trial court dismissed the petition. We affirm
the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Bernard Howard, Only, Tennessee, appellant, pro se.
Herbert H. Slatery, III Attorney General and Reporter,
Andrée S. Blumstein, Solicitor General, and Charlotte
Davis, Assistant Attorney General, Nashville, Tennessee, for
the appellees, Turney Center Disciplinary Board, Rachel
McCauley, Kevin Genovese, and Derrick Schofield.
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which W. Neal McBrayer and Arnold B. Goldin, JJ.,
CHARLES D. SUSANO, JR., JUDGE.
disciplinary report alleges that "on the evening of
March 24, 2016 inmate Eric Howard . . . became disruptive
with medical staff to the point where he was using profanity
and he was banging on stationary property inside the
clinic." He was charged with defiance. Howard was given
a copy of the disciplinary report on March 31, 2016. A
hearing before the alternative hearing officer, respondent
Cpl. Rachel McCauley, took place on April 1, 2016. Two
persons testified: Howard, and Internal Affairs officer Sgt.
Dustin Mackin, who presented evidence deemed confidential by
TDOC - evidence that TDOC says supported the charge and
conviction. Cpl. McCauley found him guilty of defiance. The
discipline imposed on Howard was five days in punitive
segregation, a nine-month package restriction, and a four
appealed to the warden, and then to the TDOC commissioner,
both of whom upheld his conviction. Having exhausted his
administrative remedies, Howard filed a petition for common
law writ of certiorari in the trial court. He alleged that
(1) Cpl. McCauley was not authorized to hear his case under
the Uniform Disciplinary Procedures; (2) his hearing was held
21.5 hours after he was notified of the charge, contrary to
the Procedures' requirement of a minimum 24 hours; and
(3) the confidential information was not properly presented
under the Procedures. The State did not oppose the petition,
and the trial court granted it. Respondents moved for
judgment on the record. The trial court found that the
hearing officer was authorized to hear the case, the 21.5
hour notice was a minor deviation from the Uniform
Disciplinary Procedures that did not substantially prejudice
Howard, and that the confidential evidence was properly
presented at the hearing. The court granted the motion and
dismissed the petition. Howard timely filed a notice of
issue presented on appeal is whether the alleged procedural
defects at Howard's hearing constitute deviations from
the Uniform Disciplinary Procedures that resulted in a
violation of his constitutional due process rights or
substantial prejudice to him.
Court has recently observed:
The common-law writ of certiorari is the procedural vehicle
prisoners may use to obtain a review of decisions by prison
disciplinary boards, parole eligibility review boards, and
other similar administrative tribunals. Willis v. Tenn.
Dep't of Corr., 113 S.W.3d 706, 712 (Tenn. 2003);
see Tenn. Code Ann. § 27-8-101 (providing that
the writ may be granted where an inferior tribunal, board, or
officer exercising judicial functions exceeds jurisdiction or
acts illegally and no other plain, speedy, or adequate remedy
is available); Davison v. Carr, 659 S.W.2d 361, 363
(Tenn. 1983) ("Common law certiorari is available where
the court reviews an administrative decision in which that
agency is acting in a judicial or quasi-judicial
capacity."). . . .
A reviewing court is not permitted to "(1) inquire into
the intrinsic correctness of the lower tribunal's
decision, (2) reweigh the evidence, or (3) substitute [its]
judgment for that of the lower tribunal" when
considering a petition for a common law writ of certiorari.
Keen, 2008 WL 539059 at *2 (citations omitted);
see also Heyne v. Metro. Nashville Bd. of Pub.
Educ., 380 S.W.3d 715, 729 (Tenn. 2012);
Willis, 113 S.W.3d at 712. Rather, the scope of
review is limited to determining "whether the
disciplinary board exceeded its jurisdiction or acted
illegally, fraudulently, or arbitrarily."
Willis, 113 S.W.3d at 712 (citing Turner v.
Tenn. Bd. of Paroles, 993 S.W.2d 78, 80 (Tenn. Ct. App.
1999)); South v. Tenn. Bd. of Paroles, 946 S.W.2d
310, 311 (Tenn. Ct. App. 1996)). This involves a question of
law, not of fact. Harding Acad. v. Metro. Gov't of
Nashville & Davidson Cnty., No.
M2004-02118-COA-R3-CV, 2006 WL 627193, at *4 (Tenn. Ct. App.
Sept. 25, 2006). " 'The scope of review by the
appellate courts is no broader or more comprehensive than
that of the trial court with respect to evidence presented
before the Board.' " Id. (quoting Watts
v. Civ. Serv. Bd. for Columbia, 606 S.W.2d 274, 277
A common law writ of certiorari can be used to correct
"(1) fundamentally illegal rulings; (2) proceedings
inconsistent with essential legal requirements; (3)
proceedings that effectively deny a party his or her day in
court; (4) decisions beyond the lower tribunal's
authority; and (5) plain and palpable abuses of
discretion." Willis, 113 S.W.3d at 712 . . . In
other words, a trial court's review is focused on the
manner in which the lower tribunal's decision was reached
rather than its intrinsic correctness. Garrard v. Tenn.
Dep't of Corr., No. M2013-01525-COA-R3-CV, 2014 WL
1887298, at *4 (Tenn. Ct. App. May 8, 2014) (citing
Powell v. Parole Eligibility Rev. Bd., 879 S.W.2d
871, 873 (Tenn. Ct. App. 1994)); Keen, 2008 WL
539059, at *2 (citing Hall v. McLesky, 83 S.W.3d