Shannon D. Young v. Tony Parker ( 2005 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned On Briefs March 4, 2005
SHANNON D. YOUNG v. TONY PARKER, ET AL.
Direct Appeal from the Circuit Court for Lake County
No. 04-8563 R. Lee Moore, Jr., Judge
No. W2004-02329-COA-R3-CV - Filed May 31, 2005
The Petitioner, an inmate in custody of the Tennessee Department of Correction, appeals from the
order of the trial court dismissing his petition for common law writ of certiorari as being untimely
filed. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; and
Remanded
DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.
Shannon D. Young, Pro se.
Paul G. Summers, Attorney General and Reporter, and Bradley W. Flippin, Assistant Attorney
General, for the Appellees, Tony Parker, et al.
MEMORANDUM OPINION1
This appeal involves the dismissal of a pro se petition for writ of certiorari filed in the Circuit
Court of Lake County by Petitioner against the warden and other officials of Northwest Correctional
Complex (NWCX). The respondents moved to dismiss for lack of subject matter jurisdiction
pursuant to Rule 12.02(1) of the Tennessee Rules of Civil Procedure. The basis for the motion was
that the petition was not filed within 60 days of the final prison disciplinary decision as required by
Tenn. Code Ann. § 27-9-102.
1
Rule 10 of the Tennessee Court of Appeals provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion would have
no precedential value. W hen a case is decided by memorandum opinion it shall be designated
"MEMORANDUM O PINION", shall not be published, and shall not be cited or relied on for any
reason in any unrelated case.
The record before us reflects that the “Petition For Common Law Writ Of Certiorari” was
filed on May 6, 2004. It is alleged in the petition that a correctional officer accused Petitioner of
threatening an employee and Petitioner was placed in segregation pending disciplinary proceedings.
The petitioner further alleges that three disciplinary write-ups were filed against him and that the
incident date for all three write-ups is February 18, 2004. It is further alleged that Petitioner was
released from punitive segregation on February 28, 2004, and was given a classification hearing
notice on February 27, 2004. It is further alleged that he was given a new housing assignment on
March 3, 2004. As noted in the trial court’s order denying the petition, there is no allegation that an
appeal was pursued by the Petitioner. Therefore, it appears that the disciplinary convictions
complained of by the Petitioner occurred between February 18, 2004, and February 28, 2004. Even
if it could be construed that the new housing assignment on March 3, 2004, was the operative date,
the petition filed on May 6, 2004, would not have been filed within 60 days.
The proper procedure for a pending judicial review of the results of a prison disciplinary
proceeding is through a common law writ of certiorari. See Rhoden v. State Dep’t of Corr., 984
S.W.2d 955, 956 (Tenn. Ct. App. 1998). These petitions must be filed within 60 days after entry of
the order or judgment at issue. The statutory time limit is mandatory and jurisdictional. See
Thandiwe v. Traughber, 909 S.W.2d 802, 804 (Tenn. Ct. App. 1994). Therefore, if the petition is
not timely filed, the courts lack jurisdiction to review the contested decision. Turner v. Tennessee
Bd. of Paroles, 993 S.W.2d 78, 80 (Tenn. Ct. App. 1999); Wheeler v. City of Memphis, 685 S.W.2d
4, 6 (Tenn. Ct. App. 1984); and Fairhaven Corp. v. Tennessee Health Facilities Comm’n, 566
S.W.2d 885, 887 (Tenn. Ct. App. 1976).
Based upon the record as it has been presented to us, we have determined that the petition
in this matter was not timely filed and that the trial court was correct in dismissing Mr. Young’s
petition. The Petitioner was apparently aware of the time constraints, as it is alleged in his brief2 that
“[i]n the instant case, strict application of the limitations period in which to file for writ of certiorari
would effectively deny the Appellant opportunity to present his claims of the abridgment of his
constitutional rights.”
The judgment of the trial court is in all respects affirmed and costs are assessed against the
Appellant, Shannon D. Young.
___________________________________
DAVID R. FARMER, JUDGE
2
By order of this Court filed January 7, 2005, the Appellant was given ten days in which to show cause why
this appeal should not be dismissed for failure to timely file a brief. On December 28, 2004, the clerk of this court
received and filed a document styled “APPELLANT’S RESPONSE TO SHOW CAUSE.” The order further recites that
“the document received and filed on December 28 appears to be the Appellant’s brief” and we have treated it as same.
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