Judson Eremity v. George Little and the Tennessee Department of Correction ( 2009 )


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  •                     IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs December 11, 2009
    JUDSON EREMITY v. GEORGE LITTLE, ET AL. AND THE TENNESSEE
    DEPARTMENT OF CORRECTION
    Appeal from the Chancery Court for Hickman County
    No. 09-016C    James G. Martin, III, Chancellor
    No. M2009-01275-COA-R3-CV - Filed December 22, 2009
    Certiorari proceeding in which an inmate seeks review of disciplinary board proceeding finding him
    guilty of assault on another inmate and revoking his sentence reduction credits. Petitioner asserts
    that disciplinary board acted arbitrarily and illegally in its utilization and application of Tennessee
    Department of Correction policies and, further, that the disciplinary board’s handling of the hearing
    violated his rights to due process of law. Finding no error, we affirm the decision of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
    RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G. CLEMENT , JR. and
    ANDY D. BENNETT , JJ., joined.
    Judson Eremity, Nashville, Tennessee, Pro Se.
    David Shaw Sadlow, Nashville Tennessee, for the appellees, George Little and the Tennessee
    Department of Correction.
    OPINION
    I. Factual and Procedural History
    Judson Eremity, an inmate presently incarcerated at Riverbend Maximum Security
    Institution,1 filed a Petition in the Hickman County Chancery Court for common law writ of
    certiorari, seeking review of the action of the Turney Center Disciplinary Board in finding him guilty
    of assaulting another inmate and imposing penalties therefor.2 The petition alleged that the members
    of the disciplinary board, the warden and the Commissioner of the Tennessee Department of
    1
    The events giving rise to this proceeding occurred while Mr. Eremity was incarcerated at Turney Center
    Industrial Facility, Only, Tennessee.
    2
    Assault is classified under the Administrative Policies and Procedures of the Tennessee Department of
    Correction as a Class A infraction (Policy No. 502.05 VI A 3) and is punishable as provided in Policy No. 502.02 VI
    E, J and K.
    Correction (“TDOC”) acted arbitrarily and illegally in finding him guilty and that their action
    violated various TDOC policies and Mr. Eremity’s rights to due process of laws. The petition was
    granted, the writ issued and the record of Mr. Eremity’s disciplinary proceeding filed with the court.
    Also filed under seal were a confidential informant’s statement, an Incident Description Report and
    certain forms identified as CR-1391 forms.
    After receiving written memoranda from the parties, the court entered an order dismissing
    the case, finding that the respondents followed TDOC policy when they considered the testimony
    of the confidential informant; afforded Mr. Eremity the due process rights to which he was entitled
    under the circumstances presented; and that the respondents had not acted in an arbitrary or illegal
    manner. Mr. Eremity appeals, presenting the following issues for review:
    1. Whether Tennessee Department of Correction acted illegally and
    arbitrarily and exceeded its authority by substantially deviating from its own policies
    to such a degree that it administered punishment without a reliable determination of
    guilt.
    2. Whether the deviations of Uniform Disciplinary Procedures by the
    Tennessee Department of Correction would not only be an violation of Uniform
    Disciplinary Procedures but would also infringe on an constitutionally protected right
    of Due Process.
    II. Scope of Review
    The disciplinary board’s action is reviewed through the common-law writ of certiorari.
    Rhoden v. State Dep’t of Corr., 
    984 S.W.2d 955
     (Tenn. Ct. App. 1998). Under the certiorari
    procedure, the inquiry before this court is whether the board exceeded its jurisdiction or acted
    illegally, fraudulently or arbitrarily; we do not review the intrinsic correctness of the decision and
    will not grant relief if the decision was reached in a lawful and constitutional manner. Maney v.
    Tenn. Bd. of Paroles, No. 01A01-9710-CV-00562, 
    1998 WL 755002
     (Tenn. Ct. App., Oct. 30,
    1998).
    III. Discussion
    A. Compliance of the Proceeding with TDOC Policy
    TDOC Policy No. 502.01 is a comprehensive policy which governs disciplinary procedures
    with the purpose of providing for “the fair and impartial determination and resolution of all
    disciplinary charges placed against inmates committed to the Tennessee Department of Correction.”
    Central to Policy No. 502.01 is the following statement of policy:
    Fair and impartial disciplinary proceedings will be administered against
    inmates charged with disciplinary infractions. The procedures contained herein alone
    shall govern the disciplinary process. This policy is not intended to create any
    additional rights for inmates beyond those which are constitutionally required. Minor
    deviations from the procedures set forth below shall not be grounds for dismissal of
    -2-
    a disciplinary offense unless the inmate is able to show substantial prejudice as a
    result and that the error would have affected the disposition of the case.
    TDOC Policy No. 502.01 V.
    Mr. Eremity challenges the disciplinary proceeding and board’s action in several respects
    including: that the disciplinary board did not independently assess and verify the reliability of the
    confidential informant contrary to the requirements of TDOC Policy No. 502.01 VI L 4 e; that he
    was not allowed to cross-examine the inmate who was assaulted, in violation of TDOC Policy No.
    502.01 VI L 4 c (3); that the evidence was insufficient to establish his guilt in violation of the
    presumption of innocence contained at TDOC Policy No. 502.01 VI L 4 k (1); that the proceeding
    was not fair and impartial in violation of TDOC Policy No. 502.01 VI L 4 c (3) and VI A 4 a; that
    the hearing panel was not constituted in accordance with TDOC Policy No. 502.01 VI A 4 a; and that
    the decision rendered by the board failed to comply with TDOC Policy No. 502.01 VI L 4 n (5). The
    primary thrust of Mr. Eremity’s contention is that the board’s utilization of and reliance upon the
    statement of the confidential informant violated TDOC policy and his rights to due process of law.
    TDOC Policy No. 502.01 VI L 4 provides in pertinent part:
    e. When the disciplinary hearing officer/chairperson determines that he/she
    should receive testimony from a confidential source whose identity cannot be
    disclosed due to either a fear of reprisal, or a breach of security information,
    or determines that he/she should receive evidence of a confidential/security
    sensitive nature, it shall be the responsibility of the disciplinary hearing
    officer to independently access and verify the reliability of the informant’s
    testimony and/or the confidential security sensitive evidence.
    f. Where the reliability of the confidential informant and/or the evidence of
    security sensitive nature has not been independently verified, such testimony
    or evidence shall not be considered by the disciplinary board/hearing officer
    in the disposition of the disciplinary charge(s).
    g. Whenever confidential information or confidential security sensitive
    evidence is utilized by the disciplinary hearing officer/chairperson as a basis
    for its decision, the TDOC Contemporaneous Record of Confidential
    Informant Reliability, CR-3510, shall be completed to document the factual
    basis for the disciplinary hearing officer’s/chairperson’s finding that the
    informant and/or security sensitive evidence was reliable.
    TDOC Policy 502.01 VI L 4 e-g.
    The record in this case reflects that form CR-3510, styled “Contemporaneous Record Of
    Confidential Informant Reliability,” was completed by the hearing officer and made a part of the
    disciplinary proceeding record. The form confirms that the hearing officer verified the reliability of
    -3-
    the confidential informant’s testimony by receiving a sworn statement from the investigating officer.
    This is in accordance with Policy 502.01 VI L 4 e and g.
    With respect to Mr. Emerity’s contentions that his inability to cross-examine and, to the
    extent raised, confront the confidential informant, violated the disciplinary hearing policy, a thorough
    review of the policy shows that an inmate charged with a disciplinary infraction does not have the
    right to appear and/or cross-examine a witness who is a confidential source. See TDOC Policy
    502.01 VI L 2 a (no right to appear when board is receiving testimony from a confidential source)
    and 502.01 VI L 4 c (3) (no right to cross-examine a confidential source or review adverse
    documentary evidence which is confidential). These contentions are without merit.
    Similarly, Mr. Eremity’s contention that the proceeding was not fair and impartial,
    specifically, that it violated Policies 502.01 VI L 4 c (3) and 502.01 VI A 4 a is without merit. The
    record contains the Disciplinary Report Hearing Summary which contains the information required
    by Policy 502.01 VI A 4. Moreover, as set forth above, he had no right to cross examine the
    confidential source.3 The record shows that Mr. Eremity was afforded the rights specified in Policy
    502.01 VI L 4 c
    Mr. Eremity challenges the sufficiency of the evidence to sustain the finding of assault.
    Section VI L 4 k (1) of Policy 502.01 allows that the case against the inmate must be proved by a
    preponderance of the evidence, defined as the “degree of proof which best accords with reason and
    probability and is more probable than not.” Policy 502.01 IV I. We have reviewed the evidence of
    record and determined that there is sufficient evidence to support the board’s finding.
    Mr. Eremity also complains that the board members who participated in his hearing were the
    same who heard the case of an inmate who had been charged for the same assault for which Mr.
    Eremity was found guilty immediately before his hearing. He contends that this violates Policy
    502.01 VI A 4 a, which requires hearing board members to be designated on a case-by-case basis.
    The mere fact that the same board members heard the two cases does not establish a violation of the
    policy or to suggest that they were not properly designated to hear this case. Mr. Eremity fails to
    point to any defect in the hearing or other prejudice as a result of the composition of the hearing
    panel and we do not presume same. As stated above, the preponderance of the evidence supports
    the finding of guilt.
    Lastly, Mr. Eremity contends that the board’s statement summarizing the disciplinary hearing
    fails to comply with Policy 502.01 VI L 4 n 5, which requires that the disciplinary report hearing
    summary (Form CR-1834) state “detailed reasons for the board/hearing officer’s . . . decision and
    summariz[e] the evidence which led to such decision.” We have reviewed the statement and
    determined that it substantially complies with the policy. Of particular significance in this regard
    is the fact that much of the evidence in this case was obtained from a confidential informant and was,
    consequently, not appropriate for exposition. In any event, Mr. Eremity has failed to show any
    prejudice as a result of any perceived deficiency in the information contained on the form CR-1834.
    3
    W e note that Mr. Eremity waived his right to call witnesses on his behalf.
    -4-
    B. Due Process of Law
    Mr. Eremity asserts that the same matters which he alleged constituted violations of TDOC
    policy also violated his rights to due process of law.
    It is clear that an inmate does not lose all constitutional protections when incarcerated;
    however, due process rights are subject to restrictions “imposed by the nature of the regime to which
    [prisoners] have been lawfully committed.” Wolff v. McDonnell, 
    418 U.S. 539
    , 556, 
    94 S. Ct. 2963
    ,
    2975 (1974); see also Morrissey v. Brewer, 
    408 U.S. 471
    , 
    92 S. Ct. 2593
     (1972). Mr. Eremity does
    not challenge Policy 502.01 as unconstitutional per se and our review of the specific provisions of
    the policy at issue in this appeal does not reveal a constitutional infirmity.
    As we have found earlier, Mr. Eremity’s challenge to the conduct of his hearing as violating
    TDOC policy is without merit. For the same reasons we conclude that his constitutional challenge
    must fail. The hearing panel was designated, the hearing conducted and evidence received in
    accordance with TDOC policy; the finding of guilt is supported by the evidence.4 He was afforded
    all rights to notice of the charge and an opportunity to be heard. In the handling of this matter, the
    disciplinary board did not act arbitrarily, capriciously or in an illegal manner.
    IV. Conclusion
    For the foregoing reasons, we find no error in the determination by the trial court and,
    consequently, affirm same.
    Costs of this appeal are assessed against Mr. Eremity, for which execution may issue if
    necessary.
    ___________________________________
    RICHARD H. DINKINS, JUDGE
    4
    As noted in Wolff, supra, a prison disciplinary proceeding is “not part of a criminal prosecution and the full
    panoply of rights due a defendant in such proceedings does not apply.” Wolff, 418 U.S. at 556, 94 S.Ct. at 2975. The
    sufficiency of the evidence to sustain the finding of guilt is determined by the preponderance of the evidence in accord
    with 502.01 VI L 4 k (1).
    -5-
    

Document Info

Docket Number: M2009-01275-COA-R3-CV

Judges: Judge Richard H. Dinkins

Filed Date: 12/22/2009

Precedential Status: Precedential

Modified Date: 10/30/2014