Argued: May 8, 2019
from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Rebecca Gantt, MCGUIREWOODS LLP, Norfolk, Virginia, for
Pendleton Porter, OFFICE OF THE UNITED STATES ATTORNEY,
Norfolk, Virginia, for Appellee.
Bradley R. Kutrow, Anne L. Doherty, MCGUIREWOODS LLP,
Charlotte, North Carolina, for Appellant.
Zachary Terwilliger, United States Attorney, Lauren A.
Wetzler, Chief, Civil Division, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
MOTZ, WYNN, and RICHARDSON, Circuit Judges.
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.
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
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.
action arises from disciplinary proceedings that occurred
during Petitioner's incarceration at the Coleman Federal
Correctional Complex in Florida ("FCC
Coleman"). 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.
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
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.
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 Counselor Nowicki. Id.
Petitioner alleged that Case Manager Lemos and Counselor
Nowicki had a romantic relationship.
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.
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 5720.09:
Inmate Discipline Program, at 46-48 (eff. Aug. 1, 2011),
("Bureau of Prisons Program
Statement"). 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.
the issuance of an incident report, like the report filed by
Case Manager Lemos, Bureau of Prisons regulations provide for
an initial investigation. 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
Committee ("Discipline Committee"). See 28
C.F.R. § 541.7 ("A Unit Discipline Committee . . .
will review the incident report once the staff investigation
Nowicki, the same prison staff member mentioned by Petitioner
to Lemos, chaired FCC Coleman's Discipline
Committee. 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.
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.
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 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.
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 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
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.
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.
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 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. §
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,  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). 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."
district court referred the matter to a magistrate judge.
Petitioner provided a sworn affidavit again averring that he
requested consideration of video surveillance 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,
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?
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 ...