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Lennear v. Wilson

United States Court of Appeals, Fourth Circuit

August 23, 2019

NICHOLAS LENNEAR, Petitioner - Appellant,
ERIC WILSON, Warden F.C.I. Petersburg, Respondent - Appellee.

          Argued: May 8, 2019

          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)


          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.

          Before MOTZ, WYNN, and RICHARDSON, Circuit Judges.


         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.


         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] 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.

          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 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 5720.09: Inmate Discipline Program, at 46-48 (eff. Aug. 1, 2011), ("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 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 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 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 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 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?


         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 ...

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