Virginia Lawyers Weekly VA Lawyers Weekly
Where the testimony of an inmate and a prison official differed over what took place after officers ordered inmates to stay in their cubicles, the inmate is entitled to potentially exculpatory video evidence of the incident unless the government establishes that consideration of such evidence would be “unduly hazardous to institutional safety or correctional goals.”
Background
This action arises from disciplinary proceedings that occurred during petitioner’s incarceration at the Coleman Federal Correctional Complex in Florida. The disciplinary proceedings stemmed from a June 11, 2016, incident between petitioner and a correctional officer: K. Lemos. Lemos and petitioner offer different accounts as to what happened after the officers ordered the inmates to stay in their cubicles.
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. Acknowledging that petitioner’s account of the events conflicted with aspects of Lemos’s report, the hearing officer gave “greater weight” to Lemos’s account.
Petitioner appealed the hearing officer’s decision to the regional director. Petitioner’s appeal stated that he had repeatedly “asked that the cameras be reviewed to validate [his] entire statement,” but that request was denied at each stage of the proceedings. The regional director denied petitioner’s appeal. Petitioner appealed that decision to the central office. The central office did not respond, and therefore, under governing regulations, the appeal was deemed denied.
On March 6, 2017, petitioner filed a habeas petition in this court. Petitioner provided a sworn affidavit again averring that he requested consideration of video surveillance evidence of the incident at each stage, and that each request was denied. The government did not offer an affidavit—or any other evidence—controverting petitioner’s affidavit.
The district court adopted a report and recommendation recommending that petitioner’s disciplinary proceedings did not violate his procedural due process rights. It denied the petition and dismissed it with prejudice.
Analysis
Although this court, to date, has not addressed whether the universe of “documentary evidence” subject to the due process protections recognized in Wolff v. McDonnell, 418 U.S. 539 (1974), encompasses video surveillance evidence, we agree with the parties that it does. The government maintains, however, 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.
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. 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.
As Wolff makes clear, however, an inmate’s right of access to video surveillance 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.” 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.”
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. The district court 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.
Vacated and remanded.
Dissenting opinion
Richardson, J., dissenting:
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.
Lennear v. Wilson, Appeal No. 18-6403, Aug. 23, 2019. 4th Cir. (Wynn), from EDVA at Norfolk (Davis). Emily Rebecca Gantt for Appellant, Kent Pendleton Porter for Appellee. VLW No. 019-2-240. 42 pp.
