Walter Himes v. Tennessee Department of Correction

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned On Briefs October 15, 2012 Session

WALTER HIMES v. TENNESSEE DEPARTMENT OF CORRECTION,
ET AL.

Direct Appeal from the Chancery Court for Wayne County
No. 2011-CV-4895 Stella Hargrove, Judge

No. M2011-02546-COA-R3-CV - Filed December 6, 2012

This appeal involves a petition for writ of certiorari filed by a state prisoner. The prisoner
was found guilty of a disciplinary offense while in the custody of the Tennessee Department
of Correction. After exhausting his administrative remedies, the prisoner filed a petition for
writ of certiorari in the trial court. The trial court granted the petition. After reviewing the
record, the trial court found that the prisoner was not entitled to relief and dismissed the
petition. Discerning no error, we affirm.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Walter Himes, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, Bill Young, Solicitor General and
Jennifer L. Brenner, Assistant Attorney General, for the appellees, Tennessee Department
of Correction, et al.

OPINION

I. Background and Procedural History

Walter Himes (“Mr. Himes”) is an inmate in the custody of the Tennessee Department
of Correction (“TDOC”). At all times relevant to this dispute, Mr. Himes was housed at the
South Central Correctional Facility (“SCCF”) in Clifton, Tennessee. On October 1, 2010,
Mr. Himes was charged with the disciplinary offense of participating in security threat group
activity.1 The TDOC’s brief also refers to this offense as participation in “gang” activity.
The disciplinary report filed against Mr. Himes explained that, following an investigation,
prison officials discovered that Mr. Himes ordered an inmate, who in turn ordered a second
inmate, to assault another inmate in retaliation for a previous altercation involving a fellow
gang member.2 Following a disciplinary hearing, the SCCF disciplinary board (the “Board”)
found Mr. Himes guilty of the offense, and as a result, imposed the following punishment:
twenty days punitive segregation, a $5.00 fine, administrative segregation placement, and the
loss of one hundred and eighty (180) days of sentence reduction credits. Subsequently, Mr.
Himes appealed to the warden and the TDOC commissioner, but each affirmed his
conviction.

On January 18, 2011, Mr. Himes filed a petition for writ of certiorari in the Chancery
Court of Wayne County. In his petition, Mr. Himes alleged, inter alia, that the Board’s
decision was based on insufficient evidence, the Board failed to follow its policies and
procedures resulting in a denial of his due process rights, and the Board acted arbitrarily by
convicting and punishing him for the offense. TDOC did not oppose Mr. Himes’ petition,
and on May 3, 2011, the trial court entered an order granting Mr. Himes’ petition for writ of
certiorari. Thereafter, TDOC filed a certified copy of the administrative record and
submitted a brief to the trial court, and Mr. Himes responded by filing his own brief in
support of his petition. After reviewing the record, on August 11, 2011, the trial court found
that Mr. Himes was not entitled to relief and entered an order dismissing the petition. On
September 9, 2011, Mr. Himes filed a Motion for a New Trial or Leave to Amend, asking
the trial court to reconsider its judgment or grant him leave to amend his original petition in
light of his pro se status. On November 1, 2011, the trial court summarily denied the motion.
Mr. Himes timely filed a notice of appeal to this Court.

II. Issues Presented

Mr. Himes presents the following issues, as stated in his brief, for our review:

(1) Whether the trial court erred in dismissing [Mr. Himes’] petition after

1
Pursuant to TDOC Policy No. 502.05(VI)(A)(47), this offense is defined as follows:

Participation in Security Threat Group Activities (PGA) (Class A): To organize,
promote, encourage, or directly participate in a security threat group or security
threat group activity.

2
According to the record, Mr. Himes was the leader of a prison gang, and the two inmates ordered
to effectuate the assault held positions below him in the hierarchy of the gang.

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 the disciplinary board denied him of his limited due process rights,

(2) Whether the Trial Court erred in dismissing [Mr. Himes’] petition for
failure to state a claim after having previously granted certiorari review
based on the merits, and

(3) Whether the Trial Court erred in denying [Mr. Himes’] Motion for a
New Trial or Leave to Amend, in light of his pro se filing status.

III. Standard of Review

As this Court recently explained in Schaffer v. Tenn. Dep’t of Corr., No. M2010-
01742-COA-R3-CV, 2011 WL 1842971 (Tenn. Ct. App. May 12, 2011):

“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.” Jackson v. Tenn. D ep’t of C orr., No.
W2005–02240–COA–R3–CV, 2006 WL 1547859, at *3 (Tenn. Ct. App. June
8, 2006) (citing Rhoden v. State Dep't of Corr., 984 S.W.2d 955, 956 (Tenn.
Ct. App. 1988)). 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.” Id. (citing 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.” Jackson, 2006 WL 1547859, at *3
(citing McCallen v. City of Memphis, 786 S.W.2d 633, 640 (Tenn. 1990)).
“The reviewing court is not empowered ‘to inquire into the intrinsic
correctness of the board's decision.’” Gordon v. Tenn. Bd. of Prob. and
Parole, No. M2006–01273–COA–R3–CV, 2007 WL 2200277, at *2 (Tenn.
Ct. App. July 30, 2007) (quoting Willis v. Tenn. Dep’t of Corr., 113 S.W.3d
706, 712 (Tenn. 2003)). Our Supreme Court has held that a common-law writ
of certiorari may be used to remedy: “(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

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 lower tribunal's authority; and (5) plain and palpable abuses of discretion.”
Gordon, 2007 WL 2200277, at *2 (citing Willis, 113 S.W.3d at 712). The
reviewing court does not weigh the evidence, but must uphold the lower
tribunal’s decision if the lower tribunal “acted within its jurisdiction, did not
act illegally or arbitrarily or fraudulently, and if there is any material evidence
to support the [tribunal’s] findings.” Jackson, 2006 WL 1547859, at *3 (citing
Watts v. Civil Serv. Bd. of Columbia, 606 S.W.2d 274, 276–77 (Tenn. 1980);
Davison v. Carr, 659 S.W.2d 361, 363 (Tenn. 1983)). “A board’s
determination is arbitrary and void if it is unsupported by any material
evidence.” Gordon, 2007 WL 2200277, at *2 (citing Watts, 606 S.W.2d at
277). 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. (citing Watts, 606 S.W.2d at 277).

This Court must review a trial court’s conclusions of matters of law de novo
with no presumption of correctness. Gordon, 2007 WL 2200277, at *2 (citing
Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)).
Because our review of the board's determination “is no broader or more
comprehensive than that of the trial court with respect to evidence presented
before the [b]oard[,]” Id. (citing Watts, 606 S.W.2d at 277), 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.”
Id. (quoting Hopkins v. Tenn. Bd. of Paroles and Prob., 60 S.W.3d 79, 82
(Tenn. Ct. App. 2001)).

Id. at *1-2.

IV. Analysis

A. Video Evidence

We begin by addressing Mr. Himes’ argument that the Board’s refusal of his request
to review and present video evidence, in violation of TDOC policy, resulted in the denial of
his due process rights. As this Court explained in Patterson v. Tenn. Dep’t of Corr., No.
W2009-01733-COA-R3-CV, 2010 WL 1565535 (Tenn. Ct. App. Apr. 20, 2010):

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

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 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. 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.” Id. (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)).

“[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 Uniform Disciplinary
Procedures. 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). “The 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 Uniform Disciplinary procedures
and that its failure to do so resulted in substantial prejudice to the inmate.” Id.
(citing Gore v. Tenn. Dep't of Corr., 132 S.W.3d 369, 378 (Tenn. Ct. App.
2003); Willis, 113 S.W.3d at 713–14).

Id. at *2.

As noted above, Mr. Himes received the following punishment: twenty days punitive

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segregation, a $5.00 fine, administrative segregation placement, and the loss of one hundred
and eighty (180) days of 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)). Mr. Himes’
other forms of punishment, however, do not constitute an “atypical” and “significant
hardship.” See Seals, 2001 WL 840271, at *6 ($5.00 fine and ten day punitive segregation
not atypical); Littles, 97 S.W.3d at 573 (administrative segregation for an undetermined
period of time not atypical). Since Mr. Himes’ liberty interests have been implicated in this
case, we must determine whether he was afforded the due process requirements set forth in
Wolff.

It is clear from the record that the Board gave Mr. Himes sufficient written notice of
the charges made against him well before the hearing took place. Also, we find no evidence
in the record to show any partiality on behalf of the Board. Moreover, as established by the
“Disciplinary Report Hearing Summary,” the Board provided Mr. Himes with a detailed
written statement describing the evidence that it relied upon, and the reasons for its findings
and the punishment imposed.3 Therefore, the only due process requirement at issue involves
whether Mr. Himes was provided the opportunity to present witnesses.

According to Mr. Himes, the TDOC’s theory was that he met with the two inmates,
his fellow gang members, in the “chow hall” and ordered them to assault another inmate.
Mr. Himes argues that the surveillance video recordings from the “chow hall” on that day
would establish that this meeting never occurred, and thus, he could not have been guilty of
participating in security threat group activity. Mr. Himes asserts that the Board’s refusal to
allow him to present this video evidence as his “witness” at the hearing, in violation of
TDOC's Uniform Disciplinary Procedures, deprived him of his due process rights.

The Uniform Disciplinary Procedures govern disciplinary actions in the state
correctional system. These procedures are intended “‘[t]o provide for the fair and impartial
determination and resolution of all disciplinary charges placed against inmates.’” Willis v.
Tenn. Dep't of Corr., 113 S.W.3d 706, 713 (Tenn.2003) (quoting TDOC Policy No.
502.01(II)). These procedures are “not intended to create any additional rights for inmates
beyond those which are constitutionally required.” TDOC Policy No. 502.01(V). The
Uniform Disciplinary Procedures afford prisoners facing disciplinary charges with a limited

3
The “Disciplinary Report Hearing Summary” provides that the Board relied upon photo evidence
of the injuries sustained by the inmates involved in the assault, statements provided by a confidential
informant, and information provided in the initial disciplinary report.

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right to present exculpatory evidence. Tenn. Dep’t Corr. Policy No. 502.01(VI)(L)(4)(c)(6)
provides that an inmate who pleads not guilty to a disciplinary offense shall have “[t]he right
to present the testimony of relevant witness(es), unless allowing the witness to appear would
pose a threat to institutional safety or order.” “This policy reflects the United States Supreme
Court's conclusion that prisoners charged with disciplinary offenses ‘should be allowed to
call witnesses and present documentary evidence in [their] defense when permitting [them]
to do so will not be unduly hazardous to institutional safety or correctional goals.’” Jeffries
v. Tenn. Dep’t of Corr., 108 S.W.3d 862, 874 (Tenn. Ct. App. 2002) (quoting Wolff v.
McDonnell, 418 U.S. at 566).

Although Mr. Himes did have the limited right to present the testimony of relevant
witnesses at the hearing, he failed to comply with TDOC Policy. TDOC Policy
502.01(VI)(L)(4)(d) provides that 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[.]” (emphasis added). The record demonstrates that Mr. Himes failed
to submit a form requesting the presence of any witness prior to the hearing. In fact, the
“Disciplinary Report Hearing Summary”clearly demonstrates that Mr. Himes signed and
executed a waiver of his right to call witnesses on his behalf. Moreover, absent Mr. Himes’
bare allegations, there is nothing in the record to show that he ever requested to review and
present the video evidence. There is also nothing in the record to show that the Board denied
his alleged requests to review and present the video evidence as his “witness” at the hearing.
Accordingly, after thoroughly reviewing the record, we cannot say that the Board acted
illegally or arbitrarily, and we further find no violation of Mr. Himes’ due process rights.4

B. Whether the Trial Court Erred in Dismissing the Petition for Failure to State a
Claim

Next, we address Mr. Himes’ argument that the trial court erred in dismissing his
petition for failure to state a claim for relief. Mr. Himes argues that, because the trial court

4
Assuming that this evidence existed, our “[c]ourts have repeatedly referred to the prisoner's right
to present exculpatory evidence as a ‘qualified’ or ‘limited’ right. Adams v. Tenn. Dep’t of Corr., No.
M2008-02475-COA-R3-CV, 2009 WL 4931367, at *4 (Tenn. Ct. App. Dec. 21, 2009), perm. app. denied
(Tenn. June 18, 2010) (citing Willis, 113 S.W.3d at 713 (“qualified right”); Irwin v. Tenn. Dep't of Corr., 244
S.W.3d 832, 836 (Tenn. Ct. App. 2007) (same); Ivy v. Tenn. Dep't of Corr., No. M2001-01219-COA-R3-CV,
2003 WL 22383613, at *4 (Tenn. Ct. App. Oct.20, 2003) (“limited right”); Jeffries, 108 S.W.3d at 874
(same). Even if Mr. Himes’ allegations were true, we would still conclude, as we did in Adams, that there
is no basis to find that the Board acted illegally or arbitrarily by allegedly denying Mr. Himes’ request to
view and present prison surveillance videos. Adams, 2009 WL 4931367, at *5 (disciplinary board did not
act illegally or arbitrarily by denying inmate's request to present allegedly exculpatory videos during his
disciplinary hearing).

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previously agreed to issue the writ of certiorari, it erred by subsequently dismissing his
petition for failure to state a claim for relief without having first reviewed the record. We
respectfully disagree.

After thoroughly reviewing the record, it is clear that Mr. Himes’ argument is based
on a misunderstanding of the procedure involved when a trial court issues a writ of certiorari.
As noted above, “[t]he 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)). Rather, 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.” Id. (citing 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)).
Once the trial court issued the writ of certiorari, and TDOC filed a certified copy of the
record of the proceedings below, the trial court’s next step was to determine whether Mr.
Himes was entitled to relief. In its final order dismissing the petition, the trial court
concluded, after reviewing the record, that Mr. Himes failed to state a claim for relief.
Further, the trial court determined that “[Mr. Himes’] allegations are not supported by the
certified disciplinary record and this Court does not find that the [Board] acted in a
fraudulent, illegal or arbitrary manner, or outside the scope of its jurisdiction.” While Mr.
Himes may disagree with the outcome of this matter, the trial court properly considered his
petition. Accordingly, we find that this issue is without merit.

C. Motion for New Trial or Leave to Amend

Finally, we must address Mr. Himes’ argument that the trial court erred in denying his
Motion for a New Trial or Leave to Amend, in light of his pro se filing status. While we
afford pro se litigants a significant amount of leeway, we must not excuse them from
adhering to the same procedural rules and substantive law applicable to all parties. Young
v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003); Irvin v. City of Clarksville, 767 S.W.2d
649, 652 (Tenn. Ct. App. 1988). Because this matter did not involve a jury trial, we find that
a motion for a new trial was not applicable in this case. See Tenn. R. Civ. P. 59.07 (“A new
trial may be granted to all or any of the parties and on all or part of the issues in an action in
which there has been a trial by jury for any of the reasons for which new trials have
heretofore been granted.) (emphasis added). Moreover, the decision to grant or deny a
motion to amend a pleading is within the sound discretion of the trial court, and this Court
will not reverse such a decision absent an abuse of discretion. Conley v. Life Care Centers
of Am., Inc., 236 S.W.3d 713, 723 (Tenn. Ct. App. 2007) (citing Fann v. City of Fairview,
905 S.W.2d 167, 175 (Tenn. Ct. App. 1994)). After the trial court entered its final judgment,
Mr. Himes asked the trial court to grant him leave to amend his petition “to fix the areas the

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court found to be flawed.” After reviewing Mr. Himes’ brief, however, he fails to provide
what he sought to amend about his original petition, and it appears that his argument on this
issue is based on his misunderstanding of the trial court’s ruling. Mr. Himes’ brief repeatedly
states that the trial court should not have dismissed his petition for failure to state a claim.
The trial court, however, did not dismiss Mr. Himes’ petition pursuant to a motion to dismiss
for failure to state a claim under Rule 12.02(6) of the Tennessee Rules of Civil Procedure.
Instead, the trial court dismissed the petition after it reviewed the record and determined that
Mr. Himes’ allegations failed to state a claim for relief. Therefore, after thoroughly
reviewing the record, we find no error in the trial court’s decision to deny Mr. Himes’ leave
to amend his petition for writ of certiorari.

V. Conclusion

For the forgoing reasons, we affirm the decision of the trial court. Costs of this appeal
are taxed to Appellant, Walter Himes, for which execution may issue if necessary.

_________________________________
DAVID R. FARMER, JUDGE

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