Keenan R. Keen v. Tennessee Department of Correction ( 2008 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned On Briefs November 29, 2007
KEENAN R. KEEN v. TENNESSEE DEPARTMENT
OF CORRECTION, ET AL.
Appeal from the Chancery Court for Hickman County
No. 06-242C Timothy L. Easter, Judge
No. M2007-00632-COA-R3-CV - Filed February 25, 2008
A Prison Disciplinary Board found a prisoner guilty of two disciplinary infractions, fined him $5.00
for each infraction and sentenced him to two thirty-day terms in punitive segregation. The prisoner
filed a petition for writ of certiorari, alleging that there were irregularities in the procedures followed
by the disciplinary board and that its actions were arbitrary, capricious, and characterized by an
abuse of discretion. The trial court granted the writ, and the department accordingly sent the
administrative record to the court for review. The respondents then filed a motion for judgment on
the record. The trial court granted the motion and dismissed the prisoner's claim. We affirm the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed
PATRICIA J. COTTRELL, P.J., M.S., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., and RICHARD H. DINKINS, JJ., joined.
Keenan R. Keen, Petros, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Kellena
Baker, Assistant Attorney General, for the appellee, Tennessee Department of Correction, et al.
OPINION
I. DISCIPLINARY PROCEEDINGS
The events that led to this appeal began on March 23, 2006. On that date, a disturbance at
the chow hall of the Turney Center Industrial Prison led correctional officers to detain Keenan R.
Keen for his role in the disturbance. They told him to pack up his property because he was being
moved to segregation. According to the disciplinary report filed against him, Mr. Keen refused to
re-enter the cell. This refusal was deemed to be suspicious, because Mr. Keen had a history of
complaining about officers being in his cell.
Correctional officers accordingly proceeded with caution, and they allegedly discovered six
razor blades which had been removed from their original holders. The blades were placed in various
locations in the cell, including under the edges of the cell table, under the inmate’s seat, and beneath
the lower edge of the bottom bunk, places where correctional officers normally use their hands to
feel for contraband or weapons while searching inmate cells. Several sewing needles were also
found lodged in the mattress of the lower bunk.
Sergeant Nicky Jordan investigated this incident, and prepared a disciplinary report which
stated that Mr. Keen had intentionally created a booby trap in order to injure the correctional officers
searching the cell. Mr Keen was charged with violation of state law (criminal attempt under Tenn.
Code Ann. § 39-12-101) and with possession of a deadly weapon. The disciplinary hearing was
conducted on March 29, 2006. Mr. Keen was represented by an inmate advisor. The evidence
presented included the testimony of Sergeant Jordan and photographs of the razor blades and of the
needles allegedly found in Mr. Keen’s cell. Mr. Keen testified in his own defense. He admitted that
the razor blades and needles were his, but he claimed that their placement had been staged by the
officers so that more serious charges could be lodged against him. He denied that he had any
intention to injure anybody.
The three members of the disciplinary board found Mr. Keen guilty of the charges presented,
and they imposed penalties of thirty days of punitive segregation and a fine of $5.00 for each
infraction.1 Mr. Keen appealed the decision. The warden affirmed the Board’s decision on April
12, 2006, stating that after review of the disciplinary report, the hearing summary and of all related
documentation, he found that “[p]unishment guidelines were not exceeded. No violations of
disciplinary procedures were cited or ascertained.” The guilty finding was also affirmed on appeal
to the Commissioner of Correction, who found “no due process violation.”
II. COURT PROCEEDINGS
On July 18, 2006, Mr. Keen filed a Petition for Writ of Certiorari in the Chancery Court of
Hickman County, accompanied by an affidavit of indigency. He named the warden of the prison and
the Commissioner of Correction as respondents.2 He alleged in general terms that the respondents
had exceeded their jurisdiction and had “acted illegally, fraudulently, and in an arbitrary and
capricious manner.” He objected to the fact that the correctional officers who found the razors and
the needles were not called to testify at the disciplinary hearing. He also argued that at the very most
he should have been charged with possessing contraband items, and that he had never been charged
with any violence against staff or inmates prior to the incident that gave rise to this appeal.
The respondents filed a “Notice of No Opposition to Granting Petition for Writ of
Certiorari.” The petition was granted, and they prepared and certified the record of the disciplinary
1
M r. Keen also states that after this incident he was placed in involuntary administrative segregation for an
indefinite period of time.
2
Although the heading of Mr. Keen’s petition only names the Warden and the Commissioner as respondents,
in the body of his pleading he requests that each of the members of the disciplinary board be asked to respond to his
allegations of errors in the disciplinary process.
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proceedings and filed it with the trial court. After the record was filed, the respondents filed a
Motion for Judgment on the Record. Mr. Keen also filed a Motion for Judgment on the Record. The
trial court granted the respondents’ motion and dismissed Mr. Keen’s claim. The prisoner then filed
a motion to alter or amend the trial court’s order, which was denied. This appeal followed.
III. THE WRIT OF CERTIORARI
The common-law writ of certiorari is the proper procedural vehicle through which prisoners
may seek review of decisions by prison disciplinary boards, parole boards, and other administrative
tribunals. Willis v. Tenn. Dep't of Correction, 113 S.W.3d 706, 712 (Tenn. 2003); Rhoden v. State
Dep’t of Correction, 984 S.W.2d 955, 956 (Tenn. Ct. App. 1998). However, the issuance of the writ
is not an adjudication of anything. Gore v. Tenn. Dep’t of Correction, 132 S.W.3d 369, 375 (Tenn.
Ct. App. 2003). 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. Hawkins v.
Tenn. Dep't of Correction, 127 S.W.3d 749, 757 (Tenn. Ct. App. 2002); Hall v. McLesky, 83 S.W.3d
752, 757 (Tenn. Ct. App. 2001).
The grounds for relief under a writ of certiorari are quite limited. Review is limited to
whether “the inferior board or tribunal (1) has exceeded its jurisdiction, or (2) has acted illegally
arbitrarily or fraudulently.” McCallen v. City of Memphis, 786 S.W.2d 633, 638 (Tenn. 1990);
Turner v. Board of Paroles, 993 S.W.2d 78, 80 (Tenn. Ct. App. 1999). The reviewing court “may
not (1) inquire into the intrinsic correctness of the lower tribunal’s decision, (2) reweigh the
evidence, or (3) substitute their judgment for that of the lower tribunal.” Arnold v. Tennessee Board
of Paroles, 956 S.W.3d 478, 480 (Tenn. 1997); Powell v. Parole Eligibility Review Board, 879
S.W.2d 871, 873 (Tenn. Ct. App. 1994). Thus, a trial court’s scope of review under the writ of
certiorari does not involve an inquiry into the intrinsic correctness of the decision reached by the
tribunal below, but only the manner in which the decision was reached. Hall v. McLesky, 83 S.W.3d
at 757 (citing Powell, 879 S.W.2d at 873).
Mr. Keen has claimed that the respondents exceeded their jurisdiction and that they acted
“illegally, fraudulently, and in an arbitrary and capricious manner.” However, he does not actually
claim that the disciplinary board lacks the jurisdiction to hear and adjudicate charges such as those
leveled against him, or that it did not have the authority to impose the penalties that were assessed.
We find no basis for the claim that the board exceeded its jurisdiction.
Mr. Keen argues on appeal that the disciplinary board subjected him to double jeopardy by
finding him guilty of two charges which arose from the same incident, and that they violated his due
process rights. However, double jeopardy prohibitions apply only to criminal proceedings.
Livingston v. State of Tenn. Board of Paroles, No. M1999-01138-COA-R3-CV, 2001 WL 747643,
at *6 (Tenn. Ct. App. July 5, 2001) (no Tenn. R. App. P. 11 application filed); Blackmon v.
Campbell, No 01A-1-9807-CH-00361, 1999 WL 85518, at *2 (Tenn. Ct. App. Feb. 23, 1999)(no
Tenn. R. App. P. 11 filed). It has long been understood that proceedings conducted by a prison
disciplinary board are administrative in nature. They are not criminal proceedings as the law
understands that term. Ray v. State, 577 S.W.2d 681, 682 (Tenn. Crim. App. 1979); State ex rel
Turner v. Gore, 175 S.W.2d 317, 318 (Tenn. 1943).
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Further, even in the criminal context, multiple charges can, and sometimes do, arise from a
single incident without implicating double jeopardy concerns. We note that the two charges in
question are actually separate and distinct. The charge of possession of a deadly weapon was based
on Mr. Keen’s physical possession of the razors and needles found in his cell. The charge of
attempted assault was based on the placement of those items in a way that was allegedly calculated
to injure the correctional officers who searched his cell.
Mr. Keen’s due process argument is somewhat meandering, but it appears to us that he is
primarily complaining that he was unable to call as witnesses the correctional officers who had
packed up the contents of his cell and who had allegedly discovered the booby-trapped razors.
Instead, the disciplinary board relied on a report by the correctional officer who had investigated the
incident of March 23, 2006, but who had not actually witnessed that incident, or at least had not been
present during the search of the prisoner’s cell.3
In Sandin v. Connor, 515 U.S. 472 (1995), the United States Supreme Court examined the
question of due process rights within the context of prison disciplinary proceedings. The Court
observed that a party is entitled to due process protection only where that party is threatened with
deprivation of a protected interest in life, liberty or property. Since incarceration by its nature
necessarily involves a retraction of liberty, and the circumstances of prison life sometimes require
the imposition of additional constraints, such as disciplinary or administrative segregation, the court
reasoned that there is no liberty interest in remaining free of such constraints, so long they do not
exceed the sentence or impose an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin, 515 U.S. at 484. The Sandin court held that a punishment
of 30 days segregation was not an atypical, significant deprivation such as would trigger an inmate’s
due process rights. 515 U.S. at 485-86.
In Willis v. Tenn. Dep't of Correction, 113 S.W.3d 706, 712 (Tenn. 2003), the Tennessee
Supreme Court, citing Sandin, held that since none of the penalties imposed on the prisoners by the
disciplinary board in that case involved deprivation of a constitutionally protected right, the
prisoners’ argument that they were deprived of constitutional due process was without merit. The
penalties imposed upon Mr. Keen in this case were the same as those imposed on the petitioners in
Sandin and Willis. Mr. Keen’s due process claims are precluded by the holdings in Sandin and
Willis.
3
Thus, Mr. Keen is apparently arguing that the disciplinary board violated his due process rights by depriving
him of the benefits of the confrontation clause. See U.S. C O N ST . Amend VI.; T EN N . C O N ST ., Art. I, Sect 9. An individual
charged with a crime has the right “to be confronted with the witnesses against him,” U.S. C O N ST . Amend VI., and “to
meet the witnesses face to face.” T EN N . C O N ST ., Art. I, Sect 9. However, because of the unique conditions of prison
life, our courts have declared many times that prisoners subjected to institutional disciplinary proceedings do not enjoy
“the full panoply of rights” accorded to defendants in criminal trials. Gore v. Tenn. Dep’t of Correction, 132 S.W.3d
at 377-78 (quoting Wolff v. McDonnell, 418 U.S. 539, 540 (1974). Among these rights are those arising from the
confrontation clause, which do not apply in proceedings like the one before us. Higgins v. White, No. M2004-00412-
COA-R3-CV, 2006 WL 1763648, at *4 (Tenn. Ct. App. June 27, 2006) (no Tenn. R. App. P. 11 application filed); Davis
v. Campbell, No. 02A01-9611-CV-00268, 1997 WL 777079, at *3 (Tenn. Ct. App. Dec. 18, 1997) (no Tenn. R. App.
P. 11 application filed).
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The Willis court did, however, reverse the trial court’s denial of the writ of certiorari, holding
that the petition contained allegations of procedural irregularities apart from due process claims
sufficient to survive a Rule 12.02(6) motion to dismiss for failure to state a claim. The inmate
petitioner in Willis alleged, inter alia, a failure to follow the written procedures of the Department
of Correction governing disciplinary proceedings that were designed to provide for the fair and
impartial determination and resolution of disciplinary charges against inmates. The court held that
substantial deviations from those procedures which substantially prejudice the outcome of a hearing
can form the basis for relief under the common-law writ of certiorari. Willis, 113 S.W.3d at 714.
Based on this holding, the Willis court accordingly ordered the trial court to grant the
petition, so the disciplinary record could be sent up for review, and the trial court could address the
substance of the petitioners’ claims in light of that record. In the present case, the trial court granted
Mr. Keen’s petition for writ of certiorari, and it thus had the opportunity to review the record of the
disciplinary proceeding before reaching its decision.
As we stated above, the reviewing court does not re-weigh the evidence, but must uphold the
decision of the inferior tribunal if that tribunal acted within its jurisdiction, did not act illegally or
arbitrarily or fraudulently, and if there is any material evidence to support its findings. Davison v.
Carr, 659 S.W.2d 361, 363 (Tenn. 1983); Watts v. Civil Service. Board of Columbia, 606 S.W.2d
274, 276-77 (Tenn. 1980). These determinations are issues of law. Watts, 606 S.W.2d at 277. Our
review of the trial court's conclusions on matters of law is de novo with no presumption of
correctness. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000); Union Carbide v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993); Tenn. R. App P. 13(d).
The disciplinary proceedings below were governed by the Uniform Disciplinary Procedures
of the Department of Correction. Those procedures were designed to “provide for the fair and
impartial determination and resolution of all charges placed against inmates committed to the
Tennessee Department of Correction (TDOC).” Index #502.01(II). They include requirements for
prior notice of charges to inmates, the assistance of an inmate legal adviser, an opportunity to be
heard. The record shows that Mr. Keen was notified of the charges against him, that he was given
time to prepare to respond to those charges, and that an inmate legal advisor assisted him in that
process.
While these are familiar features of our legal system, the Uniform Disciplinary Procedures
differ in some significant ways from the procedures that bind our criminal courts, proceedings which
may result in the initial loss of freedom. For example, guilt of a disciplinary infraction does not have
to be proven beyond a reasonable doubt, but only by a preponderance of the evidence. Index
#502.01(VI)(E)(9)(i)(1). Further, the disciplinary board is entitled to consider any evidence it finds
reliable, whether or not such evidence would be admissible in a court of law. Index
#502.01(VI)(E)(9)(c)(2).
Mr. Keen argues that because he was unable to call as witnesses the correctional officers who
packed up the property in his cell, we should reverse the trial court and grant him the relief he seeks.
The Uniform Disciplinary Procedures include a process by which inmates can file written requests
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for the appearance of witnesses at disciplinary hearings. No such written requests are found in the
record.
Mr. Keen suggests that he did not know which correctional officers were involved, because
their names were not included in Sergeant Jordan’s report. It is possible he could have filed such
a request nonetheless, using some other form of description to designate the relevant individuals.
The Procedures also allow an inmate to request a continuance of a scheduled hearing for up to seven
days, Index #502.01(VI)(D)(4)(a)(1), which might have given Mr. Keen additional time to identify
these (or other) witnesses, but no such request for continuance is found in the record. We find
nothing in the record to indicate that, as a matter of law, the disciplinary board acted illegally or
fraudulently.
The disciplinary record shows that Mr. Keen appeared at the hearing, and that he had access
to an inmate legal advisor. Photographs of the razor blades and needles were introduced into
evidence. Mr. Keen admitted that the razors were his, but he denied that he ever intended to harm
anyone. The board also heard from Sergeant Jordan. At the conclusion of the proof, the three
members of the disciplinary board found by a preponderance of the evidence that Mr. Keen was
guilty of the charges presented.
For Mr. Keen, the bottom line of this appeal is his insistence that he is innocent of the
charges for which he was convicted. He claims that he “is known for sewing throughout the
institution,” that he uses the razor blades for cutting thread and material, that correctional officers
staged the placement of these items in such a way as to make him seem guilty of malicious intent,
and that they were motivated by long-standing hostility against him by one or more correctional
officers. However, as we stated above, a court reviewing a petition for writ of certiorari may not
inquire into the intrinsic correctness of the decision of the tribunal below. Robinson v. Clement, 65
S.W.3d 632, 635 (Tenn. Ct. App. 2001).
Instead, with regard to the sufficiency of the evidence, a reviewing court must simply
determine whether material evidence was presented to the inferior board or tribunal to support its
decision. A decision is arbitrary and void if it is unsupported by any material evidence, or if the
tribunal fails to follow the essential requirements of the law. Watts v. Civil Serv. Bd. of Columbia,
606 S.W.2d at 276-77; Hawkins v. Tenn. Dep't of Correction, 127 S.W.3d at 757. An appellate court
reviewing a trial court's decision follows the same standard of review. Watts v. Civil Serv. Bd. of
Columbia, 606 S.W.2d at 277. We have earlier described the evidence presented at the hearing, and
we conclude there was material evidence to support the disciplinary board’s decision.
III.
The judgment of the trial court is affirmed. We remand this case to the Chancery Court of
Hickman County for any further proceedings necessary. Tax the costs on appeal to the appellant,
Keenan R. Keen.
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____________________________________
PATRICIA J. COTTRELL, JUDGE
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