                                     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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