Settle v. Tennessee Department of Correction

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE

Assigned On Briefs February 22, 2008

MIKE SETTLE v. TENNESSEE DEPARTMENT OF CORRECTION, et al.

Direct Appeal from the Chancery Court for Davidson County
No. 05-3061-II Carol McCoy, Chancellor

No. M2007-01781-COA-R3-CV - Filed May 27, 2008

Appellant, a prisoner in the custody of the Tennessee Department of Correction, challenges the trial
court's order dismissing his Petition for Writ of Certiorari. The record reveals that the court reached
its decision in a lawful manner. We affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S., and
HOLLY M. KIRBY , J., joined.

Mike Settle, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General and
Kellena Baker, Assistant Attorney General, for the Tennessee Department of Correction.

OPINION

Mike Settle (Appellant) is a prisoner in the custody of the Tennessee Department of
Correction (“TDOC”). On August 14, 1999, Mr. Settle was transported from the Hardeman County
Correctional Facility to the Jackson-Madison County General Hospital for an apparent drug
overdose. At that time, Mr. Settle was classified as a medium security inmate. While in the hospital,
on August 16, 1999, Mr. Settle requested that his restraints be removed so that he could use the
restroom. The correctional officer in charge of Mr. Settle partially removed the restraints, at which
time Mr. Settle struck the officer. Mr. Settle obtained the officer’s weapon, and escaped from
custody, taking a hostage and a car from the hospital parking lot. Willis v. Settle, 162 S.W.3d 169
(Tenn. Ct. App. 2004).

When Mr. Settle was caught, he was charged with the prison disciplinary infractions of
escape and assault on staff. He pled guilty to both charges. For each conviction, the prison
disciplinary board (the “Board”) sentenced Mr. Settle to thirty days punitive segregation and imposed
a five dollar fine. For both the assault and escape convictions, the Board recommended that Mr.
Settle be subject to outside charges, see Settle v. State, No. W2003-01261-CCA-R3-PC, 2004 WL
1656481 (Tenn. Crim App. July 23, 2004). For the escape conviction, Mr. Settle’s release eligibility
date was extended to his sentence expiration date; this recommendation was approved by the
Commissioner’s Designee and the Warden of the Hardeman County Correctional Facility. For the
assault conviction, the Commissioner’s Designee and the Warden approved the loss of nine months
of sentence credit. For the escape conviction, the Board recommended that Mr. Settle be placed in
administrative segregation. This recommendation was also approved.

On December 12, 2005, Mr. Settle filed a petition for writ of certiorari against Commissioner
George Little (together with the TDOC, “Appellees”) in the Davidson County Chancery Court,
seeking review of the actions of the TDOC in placing Mr. Ward in administrative segregation.1 In
his petition, filed pursuant to T.C.A. § 27-8-101, Mr. Settle seeks declaratory and injunctive relief
based upon his allegations that he was not provided a copy of the written post-hearing statement of
the Board’s decision, including the evidence relied upon, in reaching its decision to place Mr. Settle
in administrative segregation.

On February 14, 2006, Mr. Settle filed a Motion for Default Judgment. On March 14, 2006,
Mr. Settle filed a Motion for Summary Judgment. On March 17, 2006, Appellees filed a Motion to
Dismiss the petition, and, on March 20, 2006, filed a response in opposition to Mr. Settle’s motion
for summary judgment. On March 29, 2006, Mr. Settle filed a document titled “Amended
Complaint,” and a response to Appellees’ Motion to Dismiss.

On September 1, 2006, the trial court entered an Order, which reads, in pertinent part, as
follows:

The Petitioner . . . seeks certiorari review of procedures employed in
conjunction with a review of his placement in administrative segregation. He also
seeks injunctive relief, and a declaratory judgment that TDOC Policy #404.10
requires written notice be given to him when his time under administrative
segregation is extended . . . .

....

The Petitioner seeks relief under Tenn. Code Ann. §4-5-223(a) of the
Declaratory Judgment Act, which states that “[a]ny affected person may petition an
agency for a declaratory order as to the validity or applicability of a statute, rule or
order within the primary jurisdiction of the agency.” However, Tenn. Code Ann. §
4-5-102(10)(A) exempts from the definition of a “rule” any “statements concerning
only the internal management of state government and not affecting private rights,

1
Commissioner Little is sued in his official capacity only.

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privileges, or procedures available to the public.” Furthermore, Tenn. Code Ann.
§ 4-5-102(10)(G) also exempts from the definition of “rule” “statements concerning
inmates of a correctional or detention facility.” Therefore, this action is not properly
brought as one for declaratory judgment.

....

The scope of review available through the common-law writ is extremely
narrow. The writ may be used only to determine whether, in a particular case, the
disciplinary board exceeded its jurisdiction or acted illegally, fraudulently, or
arbitrarily; it may not be used to review the correctness of the Board’s decision.

....

In the present case, the petition states that the prison review committee met
to review the status of the Petitioner’s confinement in administrative segregation.
The committee purportedly determined that the Petitioner’s confinement in
administrative segregation should be extended for another 30 days. The Petitioner
states that he did not receive a written copy of the review committee’s decision and
its rationale as required under TDOC Policy #404.10. He alleges that he filed a
grievance, but that his grievance was denied. He further states that the committee
made the same decision since October of 2005, “without discussing the need for
administrative segregation.”

The Petitioner contends that he has a protected liberty interest in residing in
the general prison population. He further alleges that TDOC regulations governing
the administration of state prisons created such an interest.

....

. . . . As the Petitioner has not alleged that he received punishments that
would entitle him to procedural due process protections under Sandin [v. Conner,
515 U.S.472 (1995)], his due process argument must fail.

. . . . In addition to his due process claim, Petitioner alleges that the
disciplinary board violated his rights by failing to follow its own established
procedures. . . . [T]he Petitioner has failed to show that the review board’s decision
to keep him in administrative segregation constituted an “atypical and significant
hardship” under Sandin. Therefore, due process rights are not invoked and this
argument must fail.

The only issue remaining is whether the Petitioner is being held in continuing
segregation as a punitive measure, despite its characterization as administrative.

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 Without the record before it, the Court cannot make such a determination.
Accordingly, the writ of certiorari is hereby issued and the Respondents are instructed
to file a certified copy of the D.S.N.F. review commission’s records. . . .

(Internal citations and footnote omitted) (emphasis in original).

On October 24, 2006, Appellees filed a certified copy of the record. On the same day,
Appellees also filed a Motion for Judgment on the Record. Mr. Settle filed a response in opposition
to this motion, and also filed a Motion for Judgment as a Matter of Law. Following a review of the
record, the trial court issued its Order on July 10, 2007. That Order reads, in relevant part, as
follows:

The only issue remaining is whether the Petitioner is being held in continuing
segregation as a punitive measure, despite its characterization as administrative.

TDOC policy defines administrative segregation as the non-punitive
segregation of inmates, for control purposes, who are believed to be a threat to the
security of the institution, the welfare of staff, or other inmates. . . .

....

A review of the record shows that the inmate pled guilty to the Class A
Infractions of Escape and Assault on Staff with a Deadly Weapon, and that he waived
his right to a disciplinary hearing. His contention that he was not informed of the
reasons for his placement in administrative segregation is, thus, disingenuous. In
deciding to impose administrative segregation, the Disciplinary Board had before it
the following facts: the Petitioner planned his escape ahead of time, he used a deadly
weapon, he assaulted a staff member, he stole a car and he abducted a hostage. In
addition, the Petitioner’s prior record showed three disciplinary convictions from
1993 to 1997 for possession of a deadly weapon, along with convictions for fighting,
threatening an employee, and other lesser offenses.

Since his placement in administrative segregation, the Petitioner has received
disciplinary convictions for disrespect, refusal of a direct order, and interference with
an officer’s duties. The administrative record contains monthly review forms
wherein the administrative panel recommends that the Petitioner remain in
administrative segregation.

....

In the present case, the warden’s decision to adopt the panel’s
recommendation that the Petitioner remain in administrative segregation appears to
be for reasons of security, safety and prison management. Accordingly, the Court

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 finds that the Petitioner has failed to demonstrate that the warden acted illegally,
fraudulently or arbitrarily. . . .

Finally, TDOC Rule 404.10(VI)(B)(3) states that in cases where the panel
recommends release from administrative segregation and the warden disagrees,
“there shall be a detailed statement of reasons prepared with a copy provided to the
inmate.” It does not appear that the panel has made such a recommendation, so as
to trigger the Rule 404.10(VI)(B)(3) requirement that the inmate receive a copy of
such statement. Thus, the Petitioner’s contention that he has not been provided with
copies of his monthly administrative segregation review statement is without merit.

Accordingly, and for the above stated reasons, this case is dismissed. . . .

(Internal citations omitted) (emphasis in original).

Mr. Settle appeals and raises two issues for review, as stated in his brief:

I. Did the Court err[] [in determining] whether the Administrative
Segregation Review Panel exceeded its jurisdiction or acted illegally, arbitrarily, or
fraudulently without the warden[’s] final approval decision?

II. Did the Court err[] in fail[ing] to consider the aspects of T.C.A. §§§ 4-3-
603, 4-3-606, 41-24-110, that authority gives TDOC policy #404.10 an abuse of
discretion by relying on incorrect view of the law or on clearly erroneous factual
findings?

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. Review under a writ of certiorari is limited
to whether the inferior board or tribunal exceeded its jurisdiction or acted illegally, arbitrarily, or
fraudulently. McCallen v. City of Memphis, 786 S.W.2d 633, 640 (Tenn.1990). The reviewing court
does not weigh the evidence, but must uphold the board's decision if the board acted within its
jurisdiction, did not act illegally or arbitrarily or fraudulently, and if there is any material evidence
to support the board's findings. 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). Consequently, the scope of
review under the common-law writ of certiorari is very narrow. In Powell v. Parole Eligibility
Review Board, 879 S.W.2d 871, 873 (Tenn.Ct.App.1994), this Court stated:

The scope of review under the common law writ, however, is very narrow.
It covers only an inquiry into whether the Board has exceeded its jurisdiction or is

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 acting illegally, fraudulently, or arbitrarily. Conclusory terms such as “arbitrary and
capricious” will not entitle a petitioner to the writ. 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.

Id. at 873 (citations omitted).

These determinations are issues of law. Watts, 606 S.W.2d at 277. Because a writ of
certiorari is not available as a matter of right, its grant or denial is within the sound discretion of the
trial court. Such decisions will not be reversed on appeal unless there is abuse of that discretion.
Hall v. McLesky, 83 S.W.3d 752, 757 (Tenn.Ct.App.2001) (citing Boyce v. Williams, 389 S.W.2d
272, 277 (1965)).

On appeal, Mr. Settle first contends that his placement in administrative settlement was
illegal because the Warden neither signed, nor gave Mr. Settle, a copy of the post-hearing statement.
TDOC Policy #404.10 is triggered by Mr. Settle’s assertion. This policy reads, in pertinent part, as
follows:

3. The board, after hearing and disposing of a charge for a disciplinary rule
infraction, may recommend that an inmate be placed in AS [i.e.,
administrative segregation] when it is believed that their continued presence
in the general population may present a threat to security, the staff, or other
inmates.

a. The inmate shall be verbally advised by the board of its
recommendation and be afforded the opportunity to present a
statement during the hearing.

b. The board shall clearly state the reason(s) for the
recommendation on the AS Placement Report [and] send to
the warden for approval, along with any pertinent information
regarding the offense which was available to the board at the
panel hearing. At privately managed facilities, the warden
shall secure the approval of the CD [i.e., Commissioner’s
Designee] prior to the segregation taking effect. . . .

Id. at §§ 404.10 (VI)(A)(3)(a) & (b).

As discussed above, Mr. Settle pled guilty to escape and assault charges, and waived his right
to a disciplinary hearing. As a result of Mr. Settle’s escape (which included use of a deadly weapon,
and taking a hostage), the Board recommended that he be placed in administrative segregation. The

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Board’s recommendation was approved by the Commissioner’s Designee, and also by the Warden.
The administrative record indicates that the Warden’s reason for approving the placement was that
the “[i]nmate escaped from the outside hospital in Jackson Tenn. During his escape, a hostage was
taken as well as a vehicle which resulted in a high speed chase. Inmate also assaulted staff and
obtained his weapon which was also used in the hostage situation.” TDOC Policy
#404.10(VI)(A)(1)(a) provides:

1. Administrative segregation (maximum custody/security) is provided as a
means of control and management. This level of segregation is for inmates
who, because of conditions surrounding their incarceration, are believed to
pose serious risks to the security and good order of the institution or the
safety of other inmates, staff, or the community and therefore require custody
and security at the highest level. Inmates considered for this category shall
include, but not be limited to, those who:

a. Have been returned to TDOC custody following an escape or
attempted escape incident from a secure setting (custody
levels of minimum restricted) or higher, or from minimum
security with actual or threatened violence;

Pursuant to the TDOC Administrative Policies and Procedures, Mr. Settle, as an escapee
who posed a serious threat to a staff member and an innocent hostage, was required to be placed in
administrative segregation. We find no mandate, however, that this placement required a signature
from the Warden and/or written notice to the inmate.

Mr. Settle further contends that his placement in administrative segregation violated his due
process rights. We disagree. The United States Supreme Court has held that an inmate’s
constitutional due process rights are only violated if the prescribed punishment “imposes an atypical
and significant hardship on the inmate in relation to the normal incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300 (1995). Moreover, this Court has determined that
a prisoner’s placement in administrative segregation does not impose a significant hardship and,
therefore, does not implicate constitutional due process protections. See, e.g., Woodruff v. Tenn
Dep’t of Corr., No. M2001-00494-COA-R3-CV, 2002 WL 1974138, *5-*6 (Tenn. Ct. App., Aug.
28, 2002).

Mr. Settle next argues that his continued confinement in administrative segregation is illegal.
Specifically, Mr. Settle takes issue with the fact that the Warden did not approve continued
administrative segregation on August 31, 1999, October 22, 1999, and June 7, 2001. Turning back
to the TDOC policies, § 404.10(VI)(B)(2) requires that:

2. Every seven (7) days from date signed by approving authority, an inmate’s
status will be reviewed by the administrative review panel or other authorized
staff designated by the warden during the first two (2) months in AS. The 4th

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 and 8th week reviews shall be in accordance with VI.(B)(3) below. Weekly
reviews are documented on Contact Notes...and shall include a summary of
the inmate’s adjustment as well as panel members present.

The administrative record indicates that the review panel met with Mr. Settle during both the
fourth and the eighth week of his confinement in administrative segregation. The panel’s
recommendations on both occasions were approved by the Warden. Although the TDOC policies
further provide that, in cases where the panel recommends release from segregation and the Warden
disagrees, “there shall be a detailed statement of reasons prepared with a copy provided to the
inmate.” TDOC Policy §404.10(VI)(B)(3), in the instant case, the panel did not recommend release
from segregation. Consequently, §404.10(VI)(B)(3) was not triggered, and Mr. Settle was not
entitled to written notice from the Warden.

Mr. Settle also argues that his continued confinement in administrative segregation
constitutes “disciplinary confinement.” Specifically, he contends that the trial court abused its
discretion in relying upon TDOC Policy §404.10 instead of The Adult Service Policies and
Procedures Manual of the TDOC Rules 4.601(5) and 4.602. He also asserts that the trial court erred
because it allegedly did not consider the duration of his placement, or his confinement at different
prisons. We disagree.

TDOC Policy § 404.10(IV)(A) defines administrative segregation as “[t]he non-punitive
segregation of inmates, for control purposes, who are believed to be a threat to the security of the
institution, the welfare of staff, or to other inmates.” Consequently, the Board may recommend that
an inmate be placed in administrative segregation when the Board believes that the inmate’s
continued presence in the general population may present a threat to security, the staff, or other
inmates. TDOC Policy § 404.10(IV)(A)(3). Mr. Settle contends that he does not meet these criteria,
and that, consequently, his confinement in administrative segregation is punitive in nature. We
disagree.

We cannot conclude that his continued confinement is for purposes of punishment. In Clark
v. Rose, 183 S.W.3d 669 (Tenn. Ct. App. 2005), this Court affirmed the trial court’s finding that an
inmate’s confinement in administrative segregation was non-punitive where the inmate had a history
of violence and had assaulted and stabbed another inmate. Likewise, the nature of Mr. Settle’s
escape, which is the act that precipitated his confinement in administrative segregation, shows a
propensity toward violence. The facts surrounding his escape are thoroughly set out in Willis v.
Settle, 162 S.W.3d 169 (Tenn. Ct. App. 2004). It is sufficient for the current appeal that Mr. Settle
used deadly force in perpetrating his escape. He assaulted the officer in charge, used the officer’s
gun to take a hostage (whom he kept at gunpoint throughout most of her ordeal). He led police on
a high-speed chase, putting his hostage, other officers, and the public at large at great risk. Once
captured, he admitted to the charges, and conceded that he had planned the escape prior to going to
the hospital. In addition to the facts surrounding Mr. Settle’s escape and capture, the administrative
record reveals that Mr. Settle’s status has been reviewed regularly. In reaching its recommendation
that Mr. Settle remain confined, the panel has noted many times that Mr. Settle has a poor attitude

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toward authority, that he has engaged in activities that led to other disciplinary actions, that he has
displayed violent and threatening behavior toward other inmates and staff. From the totality of the
circumstances, we conclude that there is good reason for Mr. Settle’s segregation from the general
population. Rather than punitive in nature, Mr. Settle’s continued confinement appears to be a
necessary action in order to combat his disruptive and dangerous propensities. The fact that three
different prison wardens have approved the Board’s recommendation to continue Mr. Settle’s
administrative confinement only works to strengthen the case for that confinement. In Woodruff v.
Tenn Dep’t of Corr., No. M2001-00494-COA-R3-CV, 2002 WL 1974138 (Tenn. Ct. App., Aug. 28,
2002), this Court held that the “warden has wide discretion to place an inmate in administrative
segregation for reasons of security, safety, and prison management . . . .” Given Mr. Settle’s history,
and based upon the record before us, we find that Mr. Settle’s confinement in administrative
segregation is not punitive in nature, but is a necessary placement in order to protect staff and other
inmates.

In conclusion, there is nothing in the record to indicate that the disciplinary board acted
outside its jurisdiction or acted arbitrarily, fraudulently, or illegally. The trial court was, therefore,
correct in dismissing Mr. Settle's petition.

For the foregoing reasons, we affirm the order of the trial court. Costs of this appeal are
assessed against the Appellant, Mike Settle.

___________________________________
DAVID R. FARMER, JUDGE

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