Nicholas Lennear v. Eric Wilson ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-6403
NICHOLAS LENNEAR,
Petitioner - Appellant,
v.
ERIC WILSON, Warden F.C.I. Petersburg,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Mark S. Davis, District Judge. (2:17−cv−00135−MSD−LRL)
Argued: May 8, 2019 Decided: August 23, 2019
Before MOTZ, WYNN, and RICHARDSON, Circuit Judges.
Vacated and remanded by published opinion. Judge Wynn wrote the opinion, in which
Judge Motz joined. Judge Richardson wrote a dissenting opinion.
ARGUED: Emily Rebecca Gantt, MCGUIREWOODS LLP, Norfolk, Virginia, for
Appellant. Kent Pendleton Porter, OFFICE OF THE UNITED STATES ATTORNEY,
Norfolk, Virginia, for Appellee. ON BRIEF: Bradley R. Kutrow, Anne L. Doherty,
MCGUIREWOODS LLP, Charlotte, North Carolina, for Appellant. G. Zachary
Terwilliger, United States Attorney, Lauren A. Wetzler, Chief, Civil Division, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
WYNN, Circuit Judge:
Petitioner Nicholas Lennear (“Petitioner”), a federal inmate, appeals a decision
holding that prison officials did not violate Petitioner’s due process rights when the
officials did not review allegedly pertinent video surveillance evidence in a disciplinary
proceeding that led to revocation of Petitioner’s good time credits.
We hold that, under the Supreme Court’s decision in Wolff v. McDonnell, 418 U.S.
539 (1974), inmates at risk of being deprived of a liberty interest, like good time credits,
have a qualified right to obtain and present video surveillance evidence. Because the
district court failed to make several factual critical determinations bearing on whether
Petitioner’s disciplinary proceeding failed to comply with that right, we vacate the district
court’s decision and remand the case for further proceedings consistent with this opinion.
I.
On October 17, 2012, the United States District Court for the Middle District of
Florida sentenced Petitioner to a 120-month term of imprisonment for committing several
federal drug offenses. Based on Bureau of Prisons records, Petitioner is scheduled to be
released in early 2021, assuming his entitlement to good-time credits.
This action arises from disciplinary proceedings that occurred during Petitioner’s
incarceration at the Coleman Federal Correctional Complex in Florida (“FCC Coleman”). 1
1
When Petitioner filed his habeas petition, he was housed at the Federal
Correctional Complex in Petersburg, Virginia (“FCC Petersburg”), which lies within the
jurisdiction of the United States District Court for the Eastern District of Virginia. The
Bureau of Prisons subsequently transferred Petitioner to the low-security Federal
Correctional Institution Seagoville, in Texas, and then to Federal Correctional Institution
(Continued)
2
The disciplinary proceedings stemmed from a June 11, 2016, incident between Petitioner
and a correctional officer, Case Manager K. Lemos (“Case Manager Lemos”). The
incident took place during the morning inmate count in the B-1 Housing Unit at FCC
Coleman. That unit housed approximately 170 inmates, including Petitioner. Due to
unspecified reasons, Case Manager Lemos and another correctional officer had trouble
conducting the morning count, forcing them to recount the unit twice. Because of inmates’
comments regarding the officers’ difficulty conducting the count, Case Manager Lemos
ordered that all inmates in the unit stay in their cubicles until the conclusion of the count.
Case Manager Lemos and Petitioner offered different accounts as to what happened
after the officers ordered the inmates to stay in their cubicles. According to a report filed
by Case Manager Lemos on the afternoon of the day of the incident, after the officers
ordered the inmates to stay in their cubicles, Petitioner “started to leave his cube.” J.A. 45.
Case Manager Lemos then gave Petitioner a “direct order” to stay in his cubicle, but
Petitioner “became resistant to [her] instructions and continued to approach [Lemos].” J.A.
45. The report states that Petitioner “continued to walk towards [her] and became loud and
aggressive, stating ‘You have an issue with me because of Nowicki and I[’]m tired of this
shit.’” J.A. 45. Petitioner was allegedly referring to Counselor T. Nowicki, who is another
member of the prison staff.
Jesup, in Georgia, where Petitioner remains housed. Appellant’s Br. at 4 n.1; Nicholas
Lennear, www.bop.gov/inmate/loc (visited August 23, 2019). When the “Government
moves a habeas petitioner after [he] properly files a petition naming [his] immediate
custodian, the District Court [where the petitioner filed a petition] retains jurisdiction.”
Rumsfeld v. Padilla, 542 U.S. 426, 441 (2004).
3
Case Manager Lemos reported that she then gave Petitioner a second direct order to
return to his cubicle, with which he complied. According to the report, after Petitioner
returned to his cubicle, he started yelling to the other inmates in the unit, stating: “‘This is
bullshit, they all treat us bad’[,] ‘Respect deserves respect! Look how they are treating us’[,
and] ‘We shouldn’t have to put up with this shit.’” J.A. 45. The report states that
Petitioner’s statements “encouraged other inmates to become loud and aggressive” and
specifically encouraged another inmate, Wilson, to begin screaming at Case Manager
Lemos. J.A. 45. The report stated that Case Manager Lemos immediately notified the
Operations Lieutenant and requested assistance, and that officers later removed Petitioner
and Wilson from the unit.
Petitioner, who was fifty-five at the time of the incident, offered a somewhat
different account of the incident during the disciplinary hearing. Due to “severe heart
problems and diabetes,” Petitioner takes several medications requiring him to frequently
use the restroom. J.A. 17. Petitioner averred that when the officers ordered him and the
other inmates to remain in their cubicles, he “already had to use the restroom badly” and
so he “immediately raised and waived [sic] [his] hand asking to use the restroom.” J.A.
18. According to Petitioner, Case Manager Lemos told Petitioner to wait, which he did.
But while Petitioner was waiting, Case Manager Lemos “let 3 other inmates use the
restroom who had asked to go after [him].” Id. Fearing that he was about to urinate on
himself, Petitioner asked Case Manager Lemos “again” to use the restroom, to which she
again said “No.” Id. Petitioner stated that, at that point, he asked Case Manager Lemos if
she was denying his requests to use the restroom because of “issues that [he] had” with
4
Counselor Nowicki. 2 Id. Petitioner alleged that Case Manager Lemos and Counselor
Nowicki had a romantic relationship.
Petitioner specifically disputed several aspects of the account of the incident set
forth in Case Manager Lemos’s report. In particular, although Petitioner conceded that he
asked Case Manager Lemos whether she was treating him “like this because of the issues
that [he] had with Counselor Nowicki,” Petitioner claims that, contrary to the incident
report, he never stated “I was tired of this shit” nor did he make any of the other comments
the report identified as inciting Wilson and the other inmates. J.A 18. Petitioner further
asserted that he “never encouraged anyone to demonstrate or to disregard staff directives.
[He] only asked to use the restroom before [he] did so on [him]self.” Id. Lastly, Petitioner
disputed the report’s assertion that prison staff had to remove him from the unit. Instead,
Petitioner averred that after his conversation with Case Manager Lemos ended, she went
to another part of the unit to finish the inmate count and subsequently directed Petitioner
and another inmate to report, unescorted, to a lieutenant.
Case Manager Lemos’s incident report charged Petitioner with a Code “299 most
like 212” violation for “conduct disruptive to the security of the institution (high) most like
engaging or encouraging a group demonstration.” J.A. 45. A violation in the Code 200
“high severity level prohibited acts” falls within the second most severe class of offenses,
below only Code 100 level prohibited acts, which include killing, rioting, drug use, and
sexual assault. See U.S. Dep’t of Justice Federal Bureau of Prisons, Program Statement
2
Petitioner stated that Counselor Nowicki and he “have had issues from the first
day [Petitioner] arrived at FCI Coleman Low.” J.A. 17.
5
5720.09: Inmate Discipline Program, at 46-48 (eff. Aug. 1, 2011),
https://www.bop.gov/policy/progstat/5270_009.pdf (“Bureau of Prisons Program
Statement”). 3 Because of the severity of the charged offense, Petitioner was subject to the
potential forfeiture of “earned statutory good time or non-vested good conduct time up to
50% or up to 60 days, whichever is less,” among other penalties. Id. at 49.
After the issuance of an incident report, like the report filed by Case Manager
Lemos, Bureau of Prisons regulations provide for an initial investigation. 4 28 C.F.R. §
541.5(b). Lieutenant A. Brinson conducted that investigation, which consisted of advising
Petitioner of his right to remain silent, taking a statement from Petitioner, and providing
Petitioner with other facts about the incident. According to a report prepared by Lieutenant
Brinson at the conclusion of his investigation, Petitioner stated he had “no staff witnesses
for this report.” J.A. 46. The report, however, did not mention whether Petitioner referred
to or requested video evidence. Lieutenant Brinson found that the charge in Case Manager
Lemos’s incident report was substantiated and referred the report to the Unit Discipline
3
A Bureau of Prisons Program Statement is an “internal agency guideline . . . akin
to an interpretive rule that does not require notice and comment,” but “is still entitled to
some deference.” Reno v. Koray, 515 U.S. 50, 61 (1995) (citations and internal alterations
omitted).
4
During the initial investigation, a Bureau of Prisons staff member (1) informs
inmates of their charges and their right to remain silent during the disciplinary process; (2)
asks inmates for a statement, at which time inmates may provide an “explanation of the
incident, request any witnesses be interviewed, or request that other evidence be obtained
and reviewed;” and (3) if applicable, informally resolves the incident report. 28 C.F.R. §
541.5(b).
6
Committee (“Discipline Committee”). See 28 C.F.R. § 541.7 (“A Unit Discipline
Committee . . . will review the incident report once the staff investigation is complete.”).
Counselor Nowicki, the same prison staff member mentioned by Petitioner to
Lemos, chaired FCC Coleman’s Discipline Committee. 5 Based on the “severity of the
[incident] report,” on June 13, 2016, the Discipline Committee referred the charge to the
Discipline Hearing Officer (“Hearing Officer”) for a further hearing and recommended the
maximum available reduction of Petitioner’s good-time credits. J.A. 45. According to the
Discipline Committee, Petitioner “declined to comment to the [Committee].” Id.
The Notice of Disciplinary Hearing advised Petitioner that he had the “right to call
witnesses at the hearing and to present documentary evidence in [his] behalf; provided,
calling your witnesses will not jeopardize institutional safety.” J.A. 47. Petitioner
indicated on the form that he declined to call any witnesses and signed the form. Although
the Notice advised Petitioner of his right to present documentary evidence, it did not
contain any corresponding space for him to request or decline access to documentary
evidence, as it did with witness requests.
After conducting a hearing, the Hearing Officer issued a report on June 29, 2016,
finding that Petitioner committed the acts as charged in the incident report. The Hearing
Officer’s report stated that, at the hearing, Petitioner did not request witnesses; that the
5
Nowicki chaired the Discipline Committee even though 28 C.F.R. § 541.7(b)
provides that Unit Discipline Committee members “will not be victims, witnesses,
investigators, or otherwise significantly involved in the incident.” As described above,
Petitioner asked Lemos whether she was not allowing him to go to the restroom “because
of the issues that [he] had with Counselor Nowicki.” J.A. 18.
7
Hearing Officer did not consider any documentary evidence; and that Petitioner stated that
he had no documentary evidence to present. At the hearing, Petitioner reiterated that he
asked to go to the bathroom; that, while the inmates were ordered to stay in their cubicles,
Case Manager Lemos let three other inmates go to the restroom, but repeatedly rejected
Petitioner’s requests; and that he questioned whether Case Manager Lemos’s decision to
deny Petitioner’s requests was related to his contentious relationship with Nowicki. The
Hearing Officer’s report did not state whether Petitioner requested access to or review of
any video recordings of the incident—or any other documentary evidence.
Acknowledging that Petitioner’s account of the events conflicted with aspects of
Case Manager Lemos’s report, the Hearing Officer gave “greater weight” to Case Manager
Lemos’s account. J.A. 15. In particular, the Hearing Officer found that Petitioner stated,
“You have an issue with me because of Nowicki and I’m tired of this shit.” Id. The Hearing
Officer further found that Petitioner, upon returning to his cubicle, started yelling
statements to the other inmates, including: “This is bullshit, they all treat us bad” and
“Respect deserved respect, look how they are treating us, we shouldn’t have to put up with
this shit.” Id. “These statements,” the Hearing Officer found, encouraged Wilson to begin
screaming at Case Manager Lemos. Id. Given the heightened security concerns associated
with the presence of a large number of inmates in an enclosed space during the count, the
Hearing Officer concluded that there was a “potential of [Petitioner’s] behavior elevating
the incident to a more serious level by attracting the attention of all the other inmates in the
housing unit, and causing them to also join [him] in [his] protest, or even taking more
dangerous actions.” J.A. 16. Finding that Petitioner committed the offense as charged, the
8
Hearing Officer revoked 27 days of Petitioner’s good-time credits, imposed 30 days of
segregation and impoundment of personal property, and canceled 120 days of Petitioner’s
commissary and visiting privileges.
On July 2, 2016, Petitioner appealed the Hearing Officer’s decision to the Regional
Director. Petitioner’s appeal stated that at the investigation stage, the Discipline
Committee stage, and the disciplinary hearing stage of his disciplinary proceedings, he
“asked that the cameras be reviewed to validate [his] entire statement.” J.A. 18. According
to Petitioner’s appeal, his request for access to and consideration of any video surveillance
evidence of the incident was denied at each stage of the proceedings, in violation of his
rights under Bureau of Prison regulations and the Due Process Clause.
The Regional Director denied Petitioner’s appeal. Regarding Petitioner’s alleged
request for video surveillance evidence, in particular, the Regional Director stated, without
citing any record evidence or testimony, that Petitioner did not timely “request a review of
video footage when presenting [his] defense to the charges,” and therefore forfeited any
right to obtain or rely on such evidence. J.A. 19.
Petitioner appealed the Regional Director’s decision to the Central Office on
November 17, 2016, once again representing that he repeatedly and unsuccessfully
requested any video surveillance evidence pertaining to the incident. Petitioner stated
that he was told by Lieutenant Brinson that video footage was only reviewed in incidents
involving knives. Petitioner further contended that his conduct constituted a violation of
Code 307 and 312—which pertain to a refusal to obey an order of any staff member and
insolence towards a staff member—rather than Code 299 (most like Code 212), as Case
9
Manager Lemos’s report asserted and the Hearing Officer found. Petitioner requested that
the Central Office either expunge the incident report from his record or hold a new
disciplinary hearing to allow consideration of the requested video surveillance evidence.
The Central Office did not respond, and therefore, under governing regulations, the appeal
was deemed denied. See 28 C.F.R. § 542.18.
On March 6, 2017, Petitioner filed a habeas petition under 28 U.S.C. § 2241 in the
United States District Court for the Eastern District of Virginia, 6 on grounds that the
disciplinary review process violated his due process rights because he was denied access
to and official consideration of video surveillance evidence of the incident, citing Wolff v.
McDonnell, 418 U.S. 539 (1974). 7 Petitioner’s petition reiterated that he asked three
officers—Lieutenant Brinson at the investigation stage; Counselor Nowicki at the
Discipline Committee stage; and Officer Carroll at the hearing—to review any video
evidence of the incident, all of which requests were denied. Petitioner again stated that, at
the investigation stage, he was told that video evidence is “only reviewed if a knife is
involved.”
The district court referred the matter to a magistrate judge. Petitioner provided a
sworn affidavit again averring that he requested consideration of video surveillance
6
“[A] prisoner seeking the restoration of good time credits in federal court may only
do so by way of writ of habeas corpus.” Pierce v. Freeman, 121 F.3d 699 (4th Cir. 1997)
(unpublished) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)).
7
Petitioner’s petition also challenged the sufficiency of evidence supporting his
charge under Superintendent v. Hill, 472 U.S. 445 (1985), but that claim was not pressed
on appeal.
10
evidence of the incident at the investigation, Discipline Committee, and hearing stages, and
that each request was denied. The Government did not offer an affidavit—or any other
evidence—controverting Petitioner’s affidavit. On February 8, 2018—and without
holding an evidentiary hearing—the magistrate issued a report and recommendation
recommending that Petitioner’s disciplinary proceedings did not violate his procedural due
process rights, and therefore that the district court deny and dismiss with prejudice the
petition. Lennear v. Wilson, No. 2:17-cv-135, 2018 WL 1312003, at *4–6 (E.D. Va. Feb.
6, 2018). The district court adopted and approved the report and recommendation in its
entirety, denying the petition and dismissing it with prejudice. Lennear v. Wilson, 2:17-
cv-135, 2018 WL 1307878, at *1 (E.D. Va. March 13, 2018). 8
Petitioner timely appealed. After Petitioner filed his informal brief (to which the
Government declined to respond), this Court appointed counsel for Petitioner and
requested formal briefing on three issues:
1. If timely requested, did Lennear have a due process right to compel
discovery of video surveillance evidence as part of his disciplinary
proceeding?
2. If timely requested, did Lennear have a due process right to have prison
officials review video surveillance evidence as part of his disciplinary
proceeding?
3. If prison inmates do have a due process right to compel discovery or
review of video surveillance evidence, did prison officials deprive Lennear
of the right based on the record in this case?
8
Because the district court adopted and approved the magistrate’s report and
recommendation in its entirety as its own opinion, this opinion refers to the report and
recommendation as the district court’s opinion.
11
II.
We review the district court’s denial of Petitioner’s Section 2241 petition de novo.
Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 530 (4th Cir. 2005). To resolve Petitioner’s
appeal, we first must determine in what circumstances, if any, Petitioner has a procedural
due process right to obtain access to and compel official review of video surveillance
evidence as part of his disciplinary proceeding. 9
In Wolff, the Supreme Court recognized that constitutional procedural due process
protections extend to prison disciplinary proceedings that could adversely impact an
inmate’s liberty interests—such as the loss of good time credits at issue here. 418 U.S. at
555; see also Ponte v. Real, 471 U.S. 491, 495 (1985) (describing “good time” credits as a
liberty interest “which could not be taken from [the inmate] in a prison disciplinary
hearing” without due process). The Supreme Court held that in a disciplinary proceeding
in which an inmate’s liberty interests are at stake, government officials must provide the
inmate with written notice of the charges at least 24 hours before the hearing as well as a
written report after the hearing detailing the evidence relied upon and the reasons for the
9
Petitioner argues in the alternative that we should recognize a qualified due process
right under Brady v. Maryland, 373 U.S. 83 (1963). However, because Petitioner presented
only a Wolff claim below—and because we resolve this case on those grounds—we decline
to decide whether Brady extends to prison disciplinary hearings. Compare Wise v.
Carpenter, 838 F.2d 469 (4th Cir. 1988) (unpublished) (rejecting that “the full panoply of
criminal trial rights flowing from Brady and its progeny apply to prisoners in disciplinary
settings”), with Chavis v. Rowe, 643 F.2d 1281, 1286 (7th Cir. 1981) (applying Brady to
prison disciplinary proceedings).
12
disciplinary action. Segarra v. McDade, 706 F.2d 1301, 1304 (4th Cir. 1983) (citing Wolff,
418 U.S. at 564).
Wolff further recognized that, in such proceedings, an inmate has a qualified right
“to call witnesses and present documentary evidence in his defense.” Wolff, 418 U.S. at
566. This right is “part of the substantive foundation of procedural due process for
inmates.” Dalton v. Hutto, 713 F.2d 75, 77 (4th Cir. 1983). Emphasizing the need for
“mutual accommodation” of institutional needs and constitutional rights, the Supreme
Court held that inmates may call witnesses or present documentary evidence unless
“unduly hazardous to institutional safety or correctional goals.” Wolff, 418 U.S. at 556,
566. In so doing, the Wolff Court “struck a careful balance between inmates’ due process
interests and the legitimate goals and security concerns of a penal institution.” Dilworth v.
Adams, 841 F.3d 246, 253 (4th Cir. 2016); see also Wolff, 418 U.S. at 555–556 (noting that
a prisoner’s rights may be “diminished” by institutional needs but “a prisoner is not wholly
stripped of constitutional protections when . . . imprisoned for crime”).
Although this Court, to date, has not addressed whether the universe of
“documentary evidence” subject to the due process protections recognized in Wolff
encompasses video surveillance evidence, we agree with the parties that it does. See Gov’t
Br. at 10 (“The Warden agrees that video surveillance footage falls within the ambit of
documentary evidence under Wolff[.]”). This Court has previously considered video
evidence, broadly speaking, to constitute “documentary evidence.” See, e.g., Witt v. W. Va.
State Police, Troop 2, 633 F.3d 272, 276 (4th Cir. 2011) (describing “documentary
evidence, such as a video”). And in the prison disciplinary proceeding context, in
13
particular, our sister circuits universally have treated prison video surveillance evidence as
a form of documentary evidence potentially subject to disclosure and review under Wolff.
See, e.g., Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 173 (3d Cir. 2011) (considering an
inmate’s request for videotape to be a request for documentary evidence); Howard v. U.S.
Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007) (“[T]he Bureau’s refusal to produce
and review a videotape . . . violated his due process right to present documentary evidence
in his own defense.”); Piggie v. Cotton, 344 F.3d 674, 679 (7th Cir. 2003). In light of this
precedent, we now hold that prison video surveillance evidence constitutes documentary
evidence subject to the procedural due process protections recognized in Wolff.
Like other forms of documentary evidence subject to Wolff’s procedural due process
protections, an inmate’s due process rights related to video surveillance evidence has at
least two dimensions: (A) the qualified right of access to such evidence and (B) the
qualified right to compel official review of such evidence.
A.
Regarding the first dimension—the qualified right of access—upon request, an
inmate is entitled to access 10 prison video surveillance evidence pertaining to his or her
disciplinary proceeding unless the government establishes that disclosure of such evidence
would be, under the particular circumstances of the case, “unduly hazardous to institutional
safety or correctional goals.” Wolff, 418 U.S. at 566. Allowing an inmate access to video
10
We decline to say under what conditions an inmate may access video surveillance
evidence. Namely, we do not reach the issue of how video access is provided to the inmate,
for example, by allowing the inmate to watch the video recording, providing the inmate
with the video recording, or some other means.
14
surveillance evidence—so long as such access does not infringe on legitimate penological
interests—constitutes an essential aspect of the inmate’s due process right to “marshal facts
in his defense and present witnesses and documentary evidence at the hearing.” Gibbons
v. Higgins, 73 F.3d 364, 364 (7th Cir. 1995) (table); see also Cannistraci v. Van Der Veur,
106 F.3d 413 (10th Cir. 1997) (same).
The Government maintains that because Wolff refers only to a right to “present”
documentary evidence in prison disciplinary proceedings, inmates have no right of
“access” to such evidence. We disagree.
As the First Circuit has explained, “if an inmate has a circumscribed right to present
documentary evidence, logic dictates that he must also have some possible means for
obtaining it.” Smith v. Mass. Dep’t of Corr., 936 F.2d 1390, 1401 (1st Cir. 1991); see also
Whitmore v. Parker, 525 Fed. App’x 865, 866 (10th Cir. 2013) (Gorsuch, J.) (“[I]t is surely
true . . . that denying a prisoner access to potentially exculpatory evidence can implicate
his procedural due process rights.” (emphasis added) (citing Wolff, 418 U.S. at 563)).
Access to documentary evidence, such as video surveillance evidence, may well prove
“central to the construction of a defense,” as it could prove exculpatory (for example, if it
counters a correctional officer’s version of events) or assist the inmate in identifying other
relevant evidence or witnesses. Smith, 936 F.3d at 1401; see also Sherrod v. Rardin, 230
F.3d 1367 (9th Cir. 2000) (unpublished) (concluding that an inmate’s due process claim
was meritorious when he was “denied access to a videotape of the riot” and noting that the
video was “the basis for all the statements and reports by prison officers” relied upon by
the hearing officer). Video footage, like other forms of documentary evidence, is
15
particularly valuable to inmates in disciplinary proceedings because inmates, like
Petitioner, “obviously face[] a severe credibility problem when trying to disprove the
charges of a prison guard.” Hayes v. Walker, 555 F.2d 625, 630 (7th Cir. 1977) (quoting
Wolff, 418 U.S. at 583 (Marshall, J., dissenting in part)); see also Dalton, 713 F.2d at 78
(explaining that the qualified right to develop and present evidence recognized in Wolff “is
especially critical in the prison context where an inmate already begins with a credibility
problem”).
For these reasons, other circuits have held that the qualified right to “present”
evidence in prison disciplinary proceedings necessarily contemplates a qualified right to
access such evidence, particularly evidence that is potentially exculpatory or otherwise
likely to assist an inmate in mounting a defense. See, e.g., Howard, 487 F.3d at 814 (“The
[Hearing Officer’s] unjustified refusal to produce and review [video surveillance evidence]
deprived [an inmate] of the process due him.” (emphasis added)); Smith, 936 F.2d at 1401;
Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir. 1992) (“[A]n inmate is also entitled
to disclosure of exculpatory evidence, unless that disclosure would unduly threaten
institutional concerns.”); Meis v. Gunter, 906 F.2d 364, 367 (8th Cir. 1990) (“[Inmates]
have a right to reasonable access to information necessary to put on a defense, including
prison documents . . . .”). The Government cites no case to the contrary, nor have we
identified any such case. Accordingly, we hold that the procedural due process protections
afforded to inmates in disciplinary proceedings encompass a qualified right of access to
video surveillance evidence.
16
As Wolff makes clear, an inmate’s right of access to video surveillance evidence—
like any other form of documentary evidence—must give way if the government
establishes that providing the inmate with access to such evidence would be “unduly
hazardous to institutional safety or correctional goals.” 418 U.S. at 566. Although we need
not comprehensively set forth the universe of “safety or correctional goals” that can justify
a penological institution’s decision to deny or otherwise place limits on an inmate’s access
to video surveillance to resolve this case, four overarching principles are worthy of
emphasis.
First, prison officials bear the “burden to come forward with evidence of the reasons
for” denying an inmate’s request for access to documentary evidence, including video
surveillance footage. Smith, 936 F.2d at 1400. Prison officials may wait to assert such
institutional concerns until after the disciplinary hearing. See Ponte, 471 U.S. at 497
(holding that prison officials “may choose to explain their decision [for denying access to
documentary evidence] at the [disciplinary] hearing, or they may choose to explain it
‘later’” in court). 11 But if prison officials fail to identify a specific safety or correctional
concern, courts may not “speculate” as to the officials’ potential reasons for denying an
inmate access to evidence in order to uphold a disciplinary decision. See Smith, 936 F.2d
at 1400.
11
Although Ponte pertained to witness requests, the Wolff Court made clear that “an
inmate’s right to call witnesses and to present documentary evidence . . . stood on the same
footing.” Smith, 936 F.2d at 1401 (citing Wolff, 418 U.S. at 566).
17
Second, prison officials must consider documentary evidence requests, including
requests for video surveillance evidence, on an “individualized basis.” Howard, 487 F.3d
at 813; see also Whitlock v. Johnson, 153 F.3d 380, 387 (7th Cir. 1998) (emphasizing that
a “rule excluding a class or category of witnesses is presumptively disfavored”). To that
end, this Court consistently has rejected blanket policies of exclusion and emphasized the
importance of case-by-case analysis in deciding to grant or deny inmate requests to obtain
access to or present evidence.
For example, in Dalton v. Hutto, we held unconstitutional a Virginia Department of
Corrections guideline that provided an inmate charged with a punishable offense only the
“right to present the voluntary testimony of witnesses, either inmates or correctional
personnel or others, in his/her own behalf.” 713 F.2d at 76 (emphasis in original) (citation
omitted). We concluded that such a “preclusion of an entire class of witnesses (i.e., anyone
who rather would not appear)” would eviscerate an inmate’s due process right to call
witnesses in his defense. Id. at 78. Such “per se proscriptions against the calling of certain
categories of witnesses are violative of the Supreme Court’s admonition that the decision
to preclude the calling of witnesses should be made on a case-by-case analysis of the
potential hazards which may flow from the calling of a particular person.” Id. (emphasis
added) (internal quotation marks omitted).
By contrast, in Brown v. Braxton, 373 F.3d 501 (4th Cir. 2004), we upheld a Virginia
regulation providing that, on a case-by-case basis, hearing officers could require prisoners
housed in Level 5 and 6 facilities—which housed maximum-security inmates convicted of
severe offenses—“who wish to present testimony from their fellow inmates . . . to submit
18
written statements in lieu of live testimony,” id. at 504. Distinguishing the regulation in
Brown from the regulation in Dalton, we concluded that Virginia had “tailored its
regulation to meet its penological concerns.” Id. at 506. Unlike the categorical ban in
Dalton on live testimony from witnesses, the Brown regulation “qualified” the inmate’s
right to call witnesses instead of “eviscerat[ing]” it. Id. at 507.
Dalton and Brown establish that “categorical” or “absolute” prohibitions limiting
inmates’ ability to develop or obtain evidence in prison disciplinary proceedings—
including, without limitation, prohibitions that apply “system-wide to all disciplinary
hearings”—do not satisfy Due Process. Id. at 506–07 (collecting cases invalidating
“absolute prohibitions . . . applied system-wide”); see also Ponte, 471 U.S. at 496 (rejecting
prison officials’ contention that “‘across-the-board’ policies denying witness requests are
invariably proper”). Importantly, prison officials may not rely on a regulation facially
requiring hearing officers to exercise discretion on case-by-case basis to permit or deny an
inmate access to documentary evidence, like video surveillance evidence, to try to “cloak”
with legality what are, in practice, “arbitrary, and preordained, decisions extending to
essentially all cases.” Segarra, 706 F.2d at 1309–10 (Murnaghan, J., concurring in part
and dissenting in part).
Third, if prison officials decide to deny an inmate access to requested documentary
evidence, including video surveillance evidence, on grounds that such evidence is not
pertinent to the inmate’s alleged violation, then that determination must be made by the
disinterested hearing officer, not prison officials involved in lodging the charge. As the
Third Circuit has explained, “[a]n inmate’s right to [access] documentary evidence is . . .
19
undermined if prison officials can bar the inmate from [accessing] the evidence simply by
denying that the evidence is relevant. If a disciplinary hearing is to have any substance,
the hearing officer must determine relevance of evidence, not corrections officers or
employees.” Burns, 642 F.3d at 174.
Fourth, if prison officials identify a valid penological reason for restricting a
particular inmate’s access to video surveillance evidence—or any other form of
documentary evidence—then, before categorically denying access to such evidence, the
prison officials should consider whether alternative avenues are available to provide the
inmate with pertinent information included in that evidence. For example, when allowing
an inmate to view a surveillance video would pose, in a particular case, safety or security
concerns, prison officials might instead provide the inmate with a written summary of the
video, as well as enter the video into evidence as a confidential exhibit. 12 See Berry v.
Knight, 770 Fed. App’x 265, 265 (7th Cir. 2019) (noting that the hearing officer denied an
inmate’s request to view the footage based on security considerations but provided him
with a summary); see also Bogue v. Vaughn, 439 Fed. App’x 700, 705 (10th Cir. 2011)
(“As a general matter, institutional concerns may dictate reliance on a summary of
videotape evidence in lieu of providing a prisoner with access to the tape itself.”).
12
In this case, for example, Petitioner acknowledged in his sworn affidavit before
the district court that the Hearing Officer “could view that [video] footage outside [his]
presence in order to make it part of the record” to obviate any security concerns in
providing him direct access. J.A. 50.
20
B.
As to the second dimension—the right to have video surveillance evidence
considered in disciplinary proceedings—upon an inmate’s request, the disciplinary hearing
officer must review video surveillance unless the government establishes that
consideration of such evidence would be, under the particular circumstances of the case,
“unduly hazardous to institutional safety or correctional goals.” Wolff, 418 U.S. at 566.
Courts repeatedly have found procedural due process violations when hearing
officers decline to consider video surveillance evidence—or other forms of documentary
evidence—without offering a constitutionally cognizable justification for refusing to do so.
For example, in Howard, the Tenth Circuit concluded that a hearing officer violated an
inmate’s procedural due process rights when the officer “refused to consider [] videotape
evidence” despite an express request by the inmate that the officer do so. 487 F.3d at 811.
The hearing officer declined to review the videotape evidence on grounds that such
evidence would be “needlessly cumulative” of staff reports. Id. at 814. Characterizing the
reasoning underlying the hearing officer’s refusal to review the videotape as “Orwellian,”
the Tenth Circuit rightly reasoned that if prison officials could refuse to review
documentary evidence—like the videotape evidence at issue—simply because it might
prove “cumulative” of statements in staff reports, then inmates, who necessarily face a
“credibility problem” in disciplinary proceedings, would be effectively deprived of
potentially critical “evidence contradicting statements of prison staff.” Id. (internal
quotation marks omitted). The court further emphasized that the hearing officer “could not
possibly have known the videotape was needlessly cumulative without looking at it.” Id.
21
Similarly, in Piggie v. McBride, 277 F.3d 922 (7th Cir. 2002), the Seventh Circuit
held that an inmate’s procedural due process rights were violated when prison officials
refused to review a surveillance tape for no reason, id. at 925. Prison officials “may not
arbitrarily refuse to consider [potentially] exculpatory evidence simply because other
evidence in the record suggests guilt,” the court rightly explained. Id. (internal quotation
marks omitted). 13
As with the right of access to documentary evidence, the right to compel official
consideration of video surveillance evidence, like other forms of documentary evidence,
must give way if the government establishes that, under the particular facts of the case,
consideration of such evidence would be “unduly hazardous to institutional safety or
correctional goals.” Wolff, 418 U.S. at 566. Again, a comprehensive discussion of which
“safety or correctional goals” are constitutionally sufficient to justify a refusal to consider
video surveillance or other forms of documentary evidence is beyond the scope of this
opinion. Nevertheless, several points are worth emphasizing.
To begin, just as with the qualified right of access to video surveillance and other
forms of documentary evidence, (1) the government bears the burden of establishing a
legitimate penological justification for refusing to consider such evidence; (2) whether an
asserted penological justification warrants denying consideration of such evidence must be
13
This requirement is reflected in the Bureau of Prisons 2011 instructions, which
provide that “if the inmate requests exculpatory evidence, such as video or audio
surveillance, the investigator must make every effort to review and preserve the evidence.”
See Bureau of Prisons Program Statement, at 19 (emphasis added). It would thus appear
that the Bureau of Prisons does not generally find institutional concerns to be inconsistent
with the presentation and review of video surveillance evidence.
22
assessed on a case-by-case basis; (3) to the extent consideration of such evidence is denied
on grounds that the evidence is not pertinent, that determination must be made by the
hearing officer, not prison officials involved in lodging the charge; and (4) before
categorically refusing to consider such evidence, the government should assess whether
any alternative avenues exist for permitting consideration of the evidence, in some form,
that protect the asserted legitimate penological consideration for restricting consideration
of such evidence.
Additionally, we note that the universe of “safety or correctional” interests
justifying prison officials’ refusal to consider video surveillance evidence will necessarily
be smaller than universe of interests sufficient to justify prison officials’ refusal to provide
access to such evidence. Put simply, many of the safety and correctional interests that
justify denying an inmate access to video surveillance evidence—such as the risk that the
inmate will learn the location of hidden security cameras or observe wrongdoing by a
fellow inmate—do not apply if such evidence is reviewed only by prison officials, not the
inmate. As the Third Circuit has explained, “[a]lthough the government may have a very
real interest in barring an inmate’s access to certain documentary evidence, that interest is
not implicated when it is provided only to the hearing officer[.]” Burns, 642 F.3d at 174–
75.
Our dissenting colleague characterizes the “overarching principles” set forth above
as “pure dictum” because the Government proffered no safety or correctional goal in this
specific case. Post at 41. We disagree. Dictum is “statement in a judicial opinion that
could have been deleted without seriously impairing the analytical foundations of the
23
holding[.]” Pittston Co. v. United States, 199 F.3d 694, 703 (4th Cir. 1999). However,
when a principle is “clearly integral to the analytical foundations of our holding,” then it is
not dicta. Id. In this case, we establish for the first time in this circuit that inmates at risk
of being deprived of a liberty interest, like good time credits, have a qualified right to obtain
and compel consideration of video surveillance evidence. “Clearly integral” to the
“analytical foundations” of that holding is our articulation of the scope of those rights.
All the principles the dissenting opinion characterizes as dictum bear directly on the
scope of the qualified rights that this Court was called upon to—and does—recognize: the
government bears the burden of establishing a legitimate penological justification for
refusing to provide access to or consider the evidence; decisions as to whether to provide
access to or consider the evidence must be made on an individualized basis; a decision to
deny access to or consideration of such evidence must be made by a disinterested official;
and, before categorically refusing to provide access to or consider such evidence, prison
officials must assess whether any alternative avenues exist to allow access to or
consideration of the evidence. And given the hearing officer’s failure to review the video,
these principles will be essential to determining the outcome of this case on remand.
Accordingly, these obligatory principles are not dicta, but rather “the analytical foundations
of the holding.” Id.
Additionally, these principles largely reflect existing—and controlling—Supreme
Court and Fourth Circuit case law. See Ponte, 471 U.S. at 497; Brown, 373 F.3d at 506–
507; Dalton, 713 F.2d at 78. Therefore, even if the dissenting opinion’s assertion that our
24
explication of these principles amounts to dictum was correct—which, again, it is not—
such principles would nonetheless remain controlling.
III.
Having determined that inmates, like Petitioner, have a qualified procedural due
process right in disciplinary proceedings to access and compel official consideration of
video surveillance evidence, we now consider whether the district court properly dismissed
Petitioner’s action, notwithstanding that Petitioner never received access to or official
review of any video evidence in the government’s possession pertinent to the events giving
rise to his disciplinary proceeding. Importantly, prison officials never have offered any
“safety or correctional goal[],” Wolff, 418 U.S. at 566—neither during the disciplinary
proceedings nor in these proceedings—justifying their decision to deny access to and
review of the requested video surveillance evidence, meaning that penological
considerations cannot justify their alleged refusal to disclose or consider such evidence.
See supra Part II.
The district court nevertheless held that the prison officials did not reversibly err in
taking Petitioner’s good time credits without disclosing or considering any pertinent video
evidence because (A) Petitioner’s request for such evidence was untimely and (B) the
evidence, if it existed, “would not have changed the outcome” of Petitioner’s disciplinary
proceeding, therefore rendering any violation of Petitioner’s rights harmless. We conclude
that the district court erred on both counts.
25
A.
First, the district court held that Petitioner was not entitled to relief because he did
not timely seek to discover any video footage of the incident. Wolff did not establish a
timeliness requirement for requests to access or present documentary evidence.
Nevertheless, several circuits have stated that, at least as a general matter, 14 if an inmate
fails to request access to or consideration of documentary evidence before or during a
disciplinary hearing, then prison officials’ failure to disclose or consider such evidence
does not amount to a denial of due process. See Piggie, 277 F.3d at 925 (“We agree that if
[the inmate] failed to make such a request either before or at the hearing, then the
[disciplinary board] could not have denied him due process by not considering the
request.”); Bliss v. Allenwood, 558 Fed. App’x 158, 160 n.4 (3d Cir. 2014) (rejecting a due
process claim where the inmate never “requested that the [video] footage be presented at
the hearing or otherwise reviewed”); Donahue v. Grondolsky, 398 Fed. App’x 767, 771
(3d Cir. 2010) (concluding that it was “too late” for a prison official to respond to an
evidence request when inmate requested evidence for the first time on appeal).
In denying the petition, the district court stated that the “first time [Petitioner] ever
made such a request [for the video footage] was in his appeal of the [disciplinary hearing
officer] decision to the Regional Director on July 2, 2016.” Lennear, 2018 WL 1312003,
at *5. That assertion is contradicted by facts in the record before the district court.
14
We need not—and thus do not—address whether exceptional circumstances
might excuse an inmate’s failure to timely request access to or consideration of video
surveillance or other forms of documentary evidence.
26
Petitioner submitted an affidavit to the district court averring that he requested
official review of any pertinent surveillance video at three different stages of the
disciplinary proceeding—at the initial investigation; at the Unit Discipline Committee
level; and at the disciplinary hearing stage. According to the affidavit, Petitioner repeatedly
asked the prison officials to “make that footage or a summary of that footage part of the
record because that footage would show [his] version of the events” and that “footage was
[his] evidence that [he] did not commit the prohibited act as charged.” J.A. 49–50.
In contrast, the Government did not introduce any evidence into the district court’s
record controverting Petitioner’s affidavit. Nevertheless, without engaging in any
independent fact-finding, the district court determined that Petitioner never requested
access to or review of any surveillance videos because “the Regional Director’s decision
specifically mentions that Petitioner ‘did not request a review of the video footage when
presenting [his] defense to the charges.’” Lennear, 2018 WL 1312003, at *5.
But “when a prisoner who seeks a writ of habeas corpus provides competent
evidence (such as an affidavit by someone with personal knowledge of the events)
contradicting an assertion by the prison disciplinary board on a material question of fact
pertinent to an issue of constitutional law, the district court must hold an evidentiary
hearing to determine where the truth lies.” Johnson v. Finnan, 467 F.3d 693, 694–95 (7th
Cir. 2006) (citation omitted). Accordingly, because Petitioner provided an uncontroverted
sworn affidavit that he timely requested the video surveillance evidence, without holding
an evidentiary hearing the “district court could not properly assume that the [government’s]
perspective is the right one.” Id. at 95; see also United States v. Nicholson, 475 F.3d 241,
27
248 (4th Cir. 2007) (“Because the district court denied relief without a hearing, it was not
able to make findings of fact on disputed factual issues.”).
At oral argument, the Government’s lawyer further suggested that this Court can
affirm the district court’s judgment because, regardless of whether Petitioner lodged a
timely request, a video of the incident “never” existed. Oral Argument at 23:26–28:22 (“I
am advised now it is not part of the record, I am advised now that there never was a
video.”). Although the Government had multiple opportunities to do so—in response to
Petitioner’s regional appeal, when Petitioner’s filed his habeas petition, in response to the
sworn affidavit Petitioner filed with the district court, and in briefing filed with this Court—
it never before claimed that the video never existed, unlike other cases in which the
government has repeatedly asserted that the video does not exist. See, e.g., Anderson v.
FCC Coleman-USP II Warden, 649 Fed. App’x 730, 731 (11th Cir. 2016) (finding no due
process violation where the “record indicates that video of the incident does not exist”);
McKoy v. Fox, 587 Fed. App’x 802, 804 (5th Cir. 2014) (noting the hearing officer’s
determination and the prison official’s sworn declaration that there was no video
recording).
Because the Government never argued that a video did not exist, the district court
did not engage in fact-finding on that question. Accordingly, like the timeliness issue,
28
whether a video of the incident ever existed is a question of fact that this Court cannot
resolve in the first instance. 15
B.
The Government also contends that we may nonetheless affirm the dismissal of
Petitioner’s action because, as the district court held, the prison officials’ alleged failure to
disclose or consider any video surveillance evidence amounted to, at most, harmless error.
Oral Argument at 27:15–28:07. According to the district court, any violation of
Petitioner’s procedural due process rights was “inconsequential” because the hearing
officer’s determination was based on “some evidence,” meaning that “viewing the
videotape would not have changed the outcome.” Lennear, 2018 WL 1312003, at *5.
The district court correctly pointed out that procedural errors in disciplinary
proceedings are subject to harmless error review. See Brown, 373 F.3d at 508; Piggie, 344
F.3d at 679. The district court, however, applied an incorrect legal standard in determining
that the failure to disclose or consider the allegedly requested video surveillance evidence
was harmless. The district court took the “some evidence” standard from the Supreme
Court’s decision in Superintendent v. Hill, 472 U.S. 445 (1985). But Hill’s “some
evidence” standard applies in determining the distinct question of whether sufficient
evidence supported a decision to revoke good time credits. Id. at 447.
15
We note that the Bureau of Prisons instructs that “[i]f the inmate requests
exculpatory evidence, such as video or audio surveillance, the investigator must make
every effort to review and preserve the evidence. It would also be prudent for the
investigator to review and preserve the video or audio surveillance even if the inmate does
not make a specific request as such evidence is relevant to the incident.” Bureau of Prisons
Program Statement, at 19 (emphases added).
29
In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court expressly rejected
the use of Hill’s “some evidence” standard in the procedural due process context. In
particular, the Court held that Hill’s “some evidence” standard addresses the “evidentiary
requirements of due process” but “in no way abrogate[s] the due process requirements
enunciated in Wolff.” Id. at 648; see also Parrish v. Dodrill, 888 F.2d 1386 (4th Cir. 1989)
(unpublished) (noting that the court evaluates the record evidence under Hill’s “some
evidence” standard “as to [the inmate’s] claim concerning the sufficiency of the evidence
against him” (emphasis added)). Accordingly, Hill’s “some evidence” standard is
“irrelevant” in determining whether a denial of procedural due process is harmless. Dean-
Mitchell v. Reese, 837 F.3d 1107, 1113 (11th Cir. 2016); see also Godlock v. Fatkin, 84
Fed. App’x 24, 27–28 (10th Cir. 2003) (“Under Edwards, it is immaterial to our inquiry
[into whether the inmate was afforded procedural due process] whether there was some
evidence to support petitioner’s disciplinary judgment.” (emphasis added)); Viens v.
Daniels, 871 F.2d 1328, 1336 n.2 (7th Cir. 1989) (explaining that a disciplinary board’s
“refusal to consider evidence or allow the prisoner access to relevant materials” is a
procedural due process challenge, not a Hill sufficiency of evidence claim).
Rather than applying Hill’s “some evidence” standard, courts tasked with
determining whether prison officials’ failure to disclose or consider testimonial or
documentary was harmless have considered whether the excluded evidence could have
“aided” the inmate’s defense. Grossman v. Bruce, 447 F.3d 801, 805 (10th Cir. 2006); see
also Brennan v. United States, 646 Fed. App’x 662, 666 (10th Cir. 2016) (“A [Hearing
Officer’s] failure to comply with the Wolff requirements is harmless when it does not
30
prejudice an inmate’s preparation or defense at a hearing.”); Piggie v. Cotton, 342 F.3d
660, 666 (7th Cir. 2003) (asking whether excluded evidence “might have aided [the
inmate’s] defense”). Accordingly, we hold that in evaluating whether prison officials’
failure to disclose or consider evidence was harmless, courts must determine whether the
excluded evidence could have aided the inmate’s defense.
Here, because neither the hearing officer nor the district court reviewed the video,
we cannot say whether the requested video surveillance evidence might have aided
Petitioner’s defense. As the Seventh Circuit explained in a similar case, “[w]ithout some
idea of what is on the tape, we cannot evaluate the merits of [the inmate’s] claim that his
defense was hampered by not being given access to it.” Piggie, 344 F.3d at 679; see also
Howard, 487 F.3d at 814 (noting that prison officials could not know if a videotape was
“needlessly cumulative without looking at it”). If, as Petitioner claims, the video
surveillance evidence shows, or provides evidence suggesting, that Petitioner did not make
the statements described in Case Manager Lemos’s report that allegedly encouraged other
inmates to behave aggressively towards prison officials—and we cannot know that without
knowing what the alleged video actually depicts—then such evidence would undoubtedly
“aid” Petitioner in establishing that he was not guilty of the offense that supported
revocation of his good time credits.
The dissenting opinion nonetheless maintains that the prison officials’ alleged
failure to disclose or consider any video surveillance evidence was harmless because
inmates are entitled to obtain and compel disclosure of such evidence only if the evidence
is “material.” Post at 38. The dissenting opinion asserts that, in this case, the video
31
surveillance evidence is material “only if it can prove or disprove [the] allegation” that
Petitioner “made oral statements that incited other inmates.” Id. We disagree.
Contrary to the dissenting opinion’s reasoning, an inmate need not demonstrate that
the video “prove[s] or disprove[s]” the central allegation of which he or she is charged in
order to obtain and compel consideration of video evidence. Rather, as explained above,
allowing access to and requiring official consideration of video surveillance evidence
represents an essential aspect of the inmate’s due process right to assemble evidence in his
or her defense. Even if video surveillance does not “prove or disprove” the central
allegation in a complaint, such evidence may prove central to that defense, by, for example,
aiding the inmate in identifying other relevant evidence or witnesses or contradicting a
correctional officer’s version of events, and thereby calling into question that officer’s
credibility. Because neither the district court nor the hearing officer ever viewed the
alleged video, we cannot know whether, if at all, it would have aided Petitioner’s defense.
The dissenting opinion further asserts that the video is not material because the
Government “represented that the prison’s surveillance system does not include audio, and
[Petitioner] has provided no indication to the contrary.” Post at 38. The Government made
that assertion for the first time in a footnote in its appellate briefing. Gov’t Br. at 39 n.6.
Consequently, the district court conducted no fact-finding as to whether any video
(assuming one existed) included audio. And even if this Court were inclined to engage in
independent fact-finding on that point—which it is not—the record before this Court
includes no evidence as to whether the prison surveillance system included audio.
32
More significantly, even if the video (assuming it exists) lacks audio, this Court
would not be in a position to determine whether the video was “material” for at least two
reasons. First, the dissenting opinion’s assertion that “prison surveillance videos” are of
“notoriously poor quality” (which, if true, would seem to render administrative or judicial
reliance on prison surveillance videos equally problematic in cases in which the
Government seeks to rely on such evidence) lacks any record support. Post at 39.
Accordingly, unsupported speculation as to the “quality” of any video has no bearing on
the resolution of this case, particularly in light of the fact that neither the district court nor
the hearing officer viewed the alleged video—and therefore necessarily made no findings
on the video’s quality.
Second, even if the alleged video lacks audio, it may nevertheless aid Petitioner’s
defense. Although Petitioner’s disciplinary charges stemmed from his alleged comments,
a silent video could still buttress Petitioner’s defense by, for example, discrediting key,
disputed factual assertions in Case Manager Lemos’s report, including that Petitioner was
moving aggressively towards Case Manager Lemos before he made the statements and that
Petitioner had to be forcibly removed from the unit. Likewise, any video of the incident
could buttress the credibility of Petitioner’s account of the incident. For example, a video
(even one of poor quality) could show that Petitioner calmly raised his hand to go to the
bathroom before he made the disputed statements, only to have his request denied,
notwithstanding that Case Manager Lemos let several other inmates do so. Such evidence
would bear directly on a finder-of-fact’s determination as to whether Case Manager
Lemos’s or Petitioner’s account of the incident, and therefore the challenged statements, is
33
more credible. See United States v. Welsh, 774 F.2d 670, 672 (4th Cir. 1985) (noting that
the fact-finder is the “sole judge[] of the credibility of the witnesses and the weight their
testimony deserves”). Additionally, any gestures Petitioner was—or was not—making at
the time of the alleged statements may bear on whether the statements were intended to, or
had the effect of, inciting other inmates.
IV.
In sum, we hold that Petitioner has a qualified right to access and compel
consideration of any video surveillance evidence of the incident giving rise to his loss of
good time credits. Because the record before this Court is inadequate to resolve several
critical factual questions bearing on whether Petitioner was denied that right, we vacate the
district court’s decision and remand. See Johnson v. Brown, 681 Fed. App’x 494, 496–97
(7th Cir. 2017) (remanding for the district court “to first determine whether the video file
still exists”); Finnan, 467 F.3d at 694 (remanding for an evidentiary hearing on timeliness).
On remand, the district court should determine, after receiving evidence and hearing
argument, whether the requested video surveillance evidence existed at the time of
Petitioner’s alleged request and whether Petitioner’s request was timely. If the district
court finds that Petitioner lodged a timely request for the evidence and that the evidence
existed at the time of his request, then, in light of the Government’s failure to offer any
penological justification, Petitioner was entitled to disclosure and official review of the
video. By contrast, if the district court determines that Petitioner did not timely request
34
such evidence, or if the evidence did not exist, then no violation of Petitioner’s procedural
due process rights occurred.
VACATED AND REMANDED
35
RICHARDSON, Circuit Judge, dissenting:
Nicholas Lennear, a federal prisoner, claims that a case manager maliciously
prohibited him from using the bathroom during an inmate count and then filed a false
incident report about his behavior. The heart of the dispute comes from the case manager’s
claim that Lennear, after bickering with her, “started yelling to the other inmates” about
their poor treatment at the hands of prison staff, prompting the other inmates “to become
loud and aggressive.” J.A. 45. The case manager’s report led to a disciplinary proceeding,
in which Lennear was found to have committed a serious prison infraction. As a result, he
was punished with a loss of good time credit, segregation, and loss of privileges.
Lennear argues that this discipline was improper because the prison failed to provide
him with (or at least review) supposedly exculpatory video footage. The parties disagree
about whether Lennear asked for this review of prison surveillance tapes during the
disciplinary proceeding, but they agree that he asked that the tapes be reviewed in appealing
the sanctions to other prison officials. After those administrative appeals were denied,
Lennear filed a habeas petition asserting that his due process rights were violated when the
staff refused his request to review the video footage. The district court denied this claim,
and Lennear appealed. 1
Prisoners retain qualified due process rights while incarcerated. Wolff v.
McDonnell, 418 U.S. 539, 556 (1974); see also Brown v. Braxton, 373 F.3d 501, 504–05
1
Lennear’s administrative request and habeas petition sought only the review of the
video by prison officials. See J.A. 18, 50. On appeal, for the first time, he now argues that
he has the right to have the video provided to him.
36
(4th Cir. 2004) (discussing prisoner due process rights). As a result, inmates cannot be
punished with loss of good time credit absent “those minimum procedures appropriate
under the circumstances . . . to insure that the state-created right is not arbitrarily
abrogated.” Wolff, 418 U.S. at 557. This includes a limited right “to call witnesses and
present documentary evidence” so long as doing so “will not be unduly hazardous to
institutional safety or correctional goals.” Id. at 566. The Supreme Court has explicitly
declined to adopt more demanding procedural protections, recognizing the need for
institutional discretion and the fact that prison “disciplinary proceedings are not part of a
criminal prosecution.” Id. at 556. As a result, “the full panoply of rights due [to] a
defendant in such proceedings does not apply.” Id.
The primary issue here is whether and when an inmate’s right to “present
documentary evidence in his defense,” id. at 566 (emphasis added), includes the right to
compel the prison to gather and review (or to provide to the inmate) video evidence in its
possession. Unlike both parties and my colleagues, I have doubts that the “minimum
procedures” required by the Constitution and set out in Wolff include this right. Cf. Young
v. Lynch, 846 F.2d 960, 963 (4th Cir. 1988) (finding no “clearly established right to demand
production of physical evidence” because “Wolff . . . does not explicitly confer this right”).
That said, the Government has conceded that due process requires prison officials to
provide some limited “discovery” to inmates in disciplinary proceedings, so I assume that
some qualified right exists.
Even with that assumption, however, any right to discovery in a prison disciplinary
hearing is at least limited to information material to the dispute at hand. See Ward v.
37
Johnson, 690 F.2d 1098, 1113 (4th Cir. 1982) (en banc) (recognizing that prison
disciplinary officials have “a right to refuse to hear witnesses whose testimony might be
irrelevant or cumulative”). 2 The Constitution does not require, even in the criminal
context, broad and unfettered discovery. Rather, defendants’ “full panoply of rights”
merely prevents the prosecution from withholding material exculpatory information, where
material information is something that creates a reasonable probability that the result at
trial would have been different had the evidence been disclosed. See Smith v. Cain, 565
U.S. 73, 75 (2012). And there is surely not a broader constitutional right to discovery in
the prison-discipline context.
The requested video footage is not material, and so prison officials did not violate
Lennear’s due process rights by failing to review it. His disciplinary charge rested on the
case manager’s assertion that he made oral statements that incited other inmates. And so
the video evidence is material only if it can prove or disprove that allegation. But it cannot.
The Government has represented that the prison’s surveillance system does not include
audio, and Lennear has provided no indication to the contrary. Without sound, the video
cannot clarify what Lennear said. I, therefore, cannot conclude that prison officials were
constitutionally required, in deciding whether to discipline him, to review a video merely
on the speculation that one could read Lennear’s lips.
2
There is a cost to pulling and reviewing surveillance footage. If prison officials
had to accede to every inmate request for such review, regardless of materiality, the
cumulative costs would indeed be “unduly hazardous to . . . correctional goals.” Wolff, 418
U.S. at 566. Frivolous litigation and pointless discovery can quickly add up to a massive
drain on limited prison time and resources.
38
Lennear argues that the footage could still show “whether Lennear was mouthing
words towards the other inmates or gesturing towards them.” Appellant’s Reply Brief at
14. Even if the footage were both filmed from an ideal position and crystal clear
(unrealistic given the notoriously poor quality of prison surveillance videos), it still would
not be material. Lennear’s discipline turned on what he said, not on which direction he
was facing or on what he was doing with his hands while he said it. Both Lennear and the
case manager agree that he said something, so there is no possibility that the video will
show Lennear standing silent. The dispute is whether Lennear said (as the case manager
claimed), “This is bullshit, they all treat us bad,” and “We shouldn’t have to put up with
this shit.” J.A. 45. If the video showed Lennear mouthing words toward other inmates
while waving his arms aggressively, it would strongly bolster the case manager’s account.
But the inverse is not true. If the video only showed Lennear speaking, that would still be
consistent with the discipline he received. As a result, no matter whether there is a potential
constitutional right to discover material surveillance footage, Lennear could get no tangible
benefit by obtaining this soundless footage.
My colleagues in the Majority do not dispute that at least some minimal relevance
is required. But in doing so, the Majority suggests an inmate “is entitled” to video so long
as it somehow “pertain[s] to his or her disciplinary proceeding.” Ante at 14. This
unprecedented threshold standard is far more expansive than that applicable for criminal
discovery (perhaps even for civil discovery) and is ripe for abuse, allowing inmates to force
prisons to engage in costly discovery for almost any reason and without any requirement
of materiality.
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Even more troubling, the Majority holds that these “pertinence” decisions must be
made by the hearing officer, and therefore necessarily must be made contemporaneously.
This holding conflicts with the Supreme Court’s guidance. The Court has required “a
‘written statement by the factfinders as to the evidence relied on and reasons’ for the
disciplinary action.” Wolff, 418 U.S. at 564 (quoting Morrissey v. Brewer, 408 U.S. 471,
489 (1972)). But the Court has affirmatively explained that prison officials need not make
contemporaneous records of their evidentiary decisions. Over thirty years ago, the
Supreme Court declined to “‘prescribe’ as constitutional doctrine that the disciplinary
board must state in writing at the time of the hearing its reasons for refusing to call a
witness.” Ponte v. Real, 471 U.S. 491, 496 (1985). It thus held that prison officials may
wait until the inmate challenges the discipline on due process grounds to justify their
refusal to call witnesses. Id. at 497 (“In other words, the prison officials may choose to
explain their decision at the hearing, or they may choose to explain it ‘later.’”). I see no
reason why a request for discovery—which, unlike the right to call witnesses, is not even
mentioned in the Supreme Court’s case law—should be treated differently. Nor do I see
any reason to treat materiality differently from other reasons a prison may have for denying
an evidentiary request.
For this same reason, even if the hearing officer were constitutionally required to
make this determination and failed to do so, that error would be harmless. See Smith v.
Dixon, 14 F.3d 956, 975 (4th Cir. 1994) (noting that habeas petitions should be dismissed
if the error was harmless). Despite the Majority’s arguments, a silent film of the incident
could not have meaningfully supported Lennear’s defense.
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As a final note, the Majority is correct that the Government never “offered any
safety or correctional goal . . . justifying their decision to deny access to and review of the
requested video surveillance evidence.” Ante at 25 (cleaned up). We have held that Wolff
requires prison officials to make such determinations on an “individual” basis, Brown, 373
F.3d at 505, and so we can only abstractly opine whether legitimate penological interests
(such as inmate and staff safety, time and resource conservation, and a prison’s interest in
confidentiality) would justify the denial of a request for material surveillance footage. Had
the Government offered individualized reasons in this case, they would not “be lightly
second-guessed by courts far removed from the demands of prison administration.”
Brown, 373 F.3d at 505; see also O’Lone v. Estate of Shabazz, 482 U.S. 342, 352 (1987)
(discussing “legitimate penological objectives”). But because such reasons were not
offered here, the Majority’s broad pronouncements about “overarching principles [] worthy
of emphasis,” ante at 17, are pure dictum. While those principles do go to the “scope of
[inmates’] qualified rights” to video evidence, id. at 24, the Majority’s analysis of this case
turns only on the existence, not the scope, of such rights, see id. at 25–34. Those principles
thus form no part of the “analytical foundations of the holding,” id. at 24, but are simply
scaffolding built to address hypothetical cases that have not yet come before us.
At base, this case is about the minimal constitutional requirements for prison
disciplinary proceedings, not best practices. Recognizing the better practice, the Bureau
of Prisons directs that “every effort” be made to “review and preserve” exculpatory video
or audio surveillance where requested. See Dep’t. of Justice, BOP, Program Statement
5270.09: Inmate Discipline Program 19 (July 8, 2011). But that directive is not a
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constitutional floor. In my view, the Constitution does not demand that prison officials go
searching for apparently useless video evidence simply because an inmate makes that
request. For this reason, I respectfully dissent.
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