ALI v. HOOKS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ABDULKADIR SHARIF ALI, )

)

Petitioner, )

)

v. ) 1:19CV481

)

ERIC A. HOOKS, )

)

Respondent. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Petitioner, a prisoner of the State of North Carolina, seeks

a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the

“Petition”). (Docket Entry 1.) Respondent has moved for summary

judgment. (Docket Entries 6, 7.) For the reasons that follow, the

Court should deny Respondent’s Motion for Summary Judgment.

I. Background

On August 8, 2014, a jury in the Superior Court of Guilford

County found Petitioner (and his co-defendant) guilty of attempted

robbery with a dangerous weapon, conspiracy to commit robbery with

a dangerous weapon, assault with a deadly weapon inflicting serious

injury, and first degree burglary in cases 13CRS100094,

13CRS100098-99, and 14CRS24118. See State v. Sheikh, No.

COA-15-688, 786 S.E.2d 433 (table), 2016 WL 1744651, at *1 (N.C.

App. May 3, 2016) (unpublished), discretionary review denied, 369

N.C. 39 (2016), cert denied sub nom., Ali v. North Carolina, ___

U.S. ___, 137 S. Ct. 1218 (2017). The trial court sentenced

Petitioner to three consecutive prison terms of 59 to 83 months, 59

to 83 months, and 23 to 40 months. See id. at *2.!

On October 23, 2018, a Disciplinary Hearing Officer (“DHO”) at

the Caswell Correctional Center (Petitioner’s place of confinement

on those sentences} convicted Petitioner after a hearing of

disciplinary offense “A-12” for possession of an unauthorized

controlled substance (ecstasy) on October 18, 2018. (See Docket

Entry 7-2 at 4-13.)° As a result of that conviction, the DHO

sentenced Petitioner to 27 days in restrictive housing for

disciplinary purposes (“RHDP”), loss of 30 days of good time/gain

time credits, 40 hours of extra duty, suspension of canteen and

telephone privileges for 80 days, and a $10 limit on weekly trust

fund withdrawals for 90 days. (See id. at 4.) On November 25,

2018, the Director of the Division of Adult Correction/Prisons

Section upheld Petitioner’s disciplinary conviction and sentence.

(See id. at 2-3.)

Petitioner thereafter submitted his instant Petition to this

Court (Docket Entry 1) seeking restoration of the 30 days of good

time/gain time he lost as part of his prison disciplinary sentence

' The North Carolina Court of Appeals found no error in Petitioner’s

convictions and sentences. See Sheikh, 2016 WL 1744651, at *2. After the trial

court denied Petitioner’s Motion for Appropriate Relief collaterally challenging

his convictions and sentences, this Court dismissed Petitioner’s action under 28

U.S.C. § 2254 attacking his underlying convictions and sentences without issuance

of a certificate of appealability. See Ali v. Hooks, No. 17CV1034, 2018 WL

3421338, at *1 (M.D.N.C. July 13, 2018) (unpublished), recommendation adopted,

slip op. (M.D.N.C. Sept. 4, 2018) (Biggs, J.).

* Throughout this Recommendation, pin citations refer to the page numbers

in the footer appended to those materials at the time of their docketing in the

CM/ECF system.

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(id. at 15). Respondent has moved for summary judgment both on the

merits and on grounds of nonexhaustion (Docket Entries 6, 7) and

Petitioner responded in opposition (Docket Entry 10). For the

reasons explained more fully below, the Court should deny

Respondent’s Motion for Summary Judgment.

II. Ground for Relief

Petitioner alleges “Due Process rights violations secured by

the U.S. Constitution (14th Amendment) [and a]lso violations of

rights secured by [North Carolina Department of Public Safety

(‘DPS’)] policies” (Docket Entry 1, ¶ 12 (Ground One) (internal

quotation marks omitted)), in that he “was not afforded the right

to refute [the investigating officer’s] evidence, [ he] was told

that [he] c[ould] not speak and [he] had no rights by [the DHO, he]

was not given [the] right to hear and to be heard[, and] . . . [the

DHO] failed to find exculpatory evidence though there existed some”

(id., ¶ 12 (Ground One)(a)).

III. Habeas Standards

The Court “shall entertain an application for a writ of habeas

corpus in behalf of a person in custody pursuant to the judgment of

a State court only on the ground that he is in custody in violation

of the Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). Further, “[b]efore [the] [C]ourt may grant

habeas relief to a state prisoner, the prisoner must exhaust his

remedies in state court. In other words, the state prisoner must

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give the state courts an opportunity to act on his claims before he

presents those claims to [this] [C]ourt in a habeas petition. The

exhaustion doctrine . . . is now codified at 28 U.S.C.

§ 2254(b)(1).” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999);

see also 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to

have waived the exhaustion requirement . . . unless the State,

through counsel, expressly waives the requirement.”).3

When a petitioner has exhausted state remedies, this Court

must apply a highly deferential standard of review in connection

with habeas claims “adjudicated on the merits in State court

proceedings,” 28 U.S.C. § 2254(d). More specifically, the Court

may not grant relief unless a state court decision on the merits

“was contrary to, or involved an unreasonable application of

clearly established Federal law, as determined by the Supreme Court

of the United States; or . . . was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.” Id. To qualify as “contrary to”

United States Supreme Court precedent, a state court decision

either must arrive at “a conclusion opposite to that reached by

[the United States Supreme] Court on a question of law” or

“confront[] facts that are materially indistinguishable from a

relevant [United States] Supreme Court precedent and arrive[] at a

result opposite” to the United States Supreme Court. Williams v.

3 The Court may deny a claim on the merits despite a lack of exhaustion.

See 28 U.S.C. § 2254(b)(2).

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Taylor, 529 U.S. 362, 406 (2000). A state court decision “involves

an unreasonable application” of United States Supreme Court case

law “if the state court identifies the correct governing legal rule

from [the United States Supreme] Court’s cases but unreasonably

applies it to the facts of the particular state prisoner’s case.”

Id. at 407; see also id. at 409–11 (explaining that “unreasonable”

does not mean merely “incorrect” or “erroneous”).

IV. Discussion

A. Nonexhaustion

Respondent contends that “[t]he North Carolina Supreme Court

[] has clarified that prisoners raising constitutional challenges

to the denial of good-time, gain-time credits, may raise these

claims in state court.” (Docket Entry 7 at 6 (citing Jones v.

Keller, 364 N.C. 249, 253-54 (2010) (holding that, “as a general

rule, the judiciary will not review the [Department of Corrections’

(‘DOC’)] grant, forfeiture, or application of credits against a

prisoner’s sentence,” but noting that the “DOC does not have carte

blanche,” and that “when a government action is challenged as

unconstitutional, the courts have a duty to determine whether that

action exceeds constitutional limits” (internal quotation marks and

brackets omitted)), cert. denied, 563 U.S. 960 (2011)).)

Respondent thus argues that, “[i]n order to exhaust state remedies

at this point, Petitioner should be required to file a separate

civil action in the Superior Court of Caswell County and then

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appeal to the North Carolina Court of Appeals [] and seek review in

the North Carolina Supreme Court [], before returning to federal

court.” (Id. at 7.)

In response, Petitioner points to a case before other judges

of this Court in which a prisoner “filed a federal habeas corpus

[petition under Section 2254] challenging prison disciplinary

convictions resulting in the loss of sentence reduction credits,”

and the state successfully moved for summary judgment on the

grounds that the prisoner must first exhaust his remedies in the

state courts. (Docket Entry 10 at 6-7 (referencing Clark v. Perry,

No. 1:15CV388, Docket Entry 18 (M.D.N.C. Feb. 1, 2016)).)4

However, as Petitioner notes (id. at 7), when the prisoner in that

case attempted to present his challenge regarding the loss of

sentence reduction credits to the state court in a Motion for

Appropriate Relief (“MAR”), the state trial court denied the MAR

two days later, “f[inding] that the matter regard[ed] a

disciplinary proceeding of an inmate and [was] not subject to [MAR]

provisions,” Clark v. Hooks, No. 1:16CV672, 2017 WL 3822898, at *1

(M.D.N.C. Aug. 8, 2017) (unpublished) (Peake, M.J.), recommendation

adopted in pertinent part, 2017 WL 3724233 (M.D.N.C. Aug. 28, 2017)

(unpublished) (Eagles, J.). Moreover, in responding to the

4 The order granting the state’s motion for summary judgment issued a

certificate of appealability “[b]ecause there [wa]s no case on point as to

whether an inmate in the custody of the State of North Carolina must sue in state

court to exhaust his remedies before filing a federal § 2254 action over a lack

of due process in the rescission of good time credits.” Clark, No. 1:15CV388,

Docket Entry 18 at 5.

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prisoner’s subsequent petition for a writ of certiorari in the

North Carolina Court of Appeals, “the [s]tate did not address the

substance of [the prisoner’s] claims, and instead took the position

that prison disciplinary procedures [we]re a matter of internal

prison administration and [we]re not amenable to direct judicial

oversight.” Id. at *1 n.2.

After several more unsuccessful filings in the state courts,

the prisoner then filed a second Section 2254 petition in this

Court, which the state moved to dismiss as untimely. Id. at *1-2.

Due to the state’s conflicting positions on whether exhaustion of

state remedies applied in the prison discipline context, the Court

held that “equitable tolling should apply to allow consideration of

the merits of the [prisoner’s second Section 2254 p]etition,” id.

at *4, and also found genuine issues of material fact precluded the

state’s motion for summary judgment, see id. at *7. Thereafter, in

lieu of proceeding to discovery and an evidentiary hearing, the

state provided the prisoner with a new disciplinary hearing. See

Clark, 2017 WL 3724233, at *1. The prisoner subsequently filed a

motion to amend his petition to assert due process violations

arising out of his second prison disciplinary hearing, and the

state filed a motion to dismiss the case. See Clark, No.

1:16CV672, Docket Entry 30 at 1 (M.D.N.C. Jan. 8, 2018). Because

the prisoner did not lose any good time credits upon conviction

following his second hearing, the Court denied as futile the

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prisoner’s motion to amend and granted the state’s motion to

dismiss, see id. at 4-5, but also noted that the state had

continued to argue, alternatively, “that [the prisoner]’s challenge

to the new disciplinary hearing should be dismissed for failure to

exhaust state court remedies.” Id. at 6 n.2. Although the Court

did not have to reach the state’s nonexhaustion argument, the Court

again acknowledged the state’s “apparent change in positions,”

noting that, “in the [] state court proceedings, [the state had

taken] the position that the state court could not review prison

disciplinary proceedings.” Id.

In light the events in the Clark matters, the Court should

conclude that a material factual question arises as to

nonexhaustion, because a reasonable fact-finder could conclude

that, if Petitioner sought review in state court, Respondent again

would argue that state courts could not review prison disciplinary

matters and the state courts would adopt that view, notwithstanding

Jones. As such, the Court should deny summary judgment on the

grounds of nonexhaustion, because of the existence of material

factual questions as to whether “(i) there is an absence of

available state corrective process; or (ii) circumstances exist

that render such process ineffective to protect the rights of

[Petitioner],” 28 U.S.C. § 2254(b)(1)(B).

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B. Merits

“Prison disciplinary proceedings are not part of a criminal

prosecution, and the full panoply of rights due a defendant in such

proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556

(1974). However, inmates possess a protected liberty interest in

the award of statutory good time credits and, therefore, “the

minimum requirements of procedural due process appropriate for the

circumstances must be observed” at prison disciplinary hearings

resulting in the loss of good time credits. Id. at 557. An inmate

receives due process in conjunction with a prison disciplinary

proceeding if he receives: (1) advance written notice of the

disciplinary charge(s) at least 24 hours before his disciplinary

hearing; (2) an opportunity, consistent with institutional safety

and correctional goals, to present witnesses and documentary

evidence in his defense; (3) a written statement by the fact

finder(s) regarding the evidence relied on and the reasons for any

disciplinary action; (4) assistance from prison staff or a

competent fellow prisoner, if necessary to enable the inmate to

comprehend his case and present evidence in his defense; and (5) a

hearing conducted by an impartial fact-finder. Id. at 563-76; see

also Clark, 2017 WL 3822898, at *5. If the prison provides those

protections and “some evidence” exists to support the resolution of

the disciplinary charge, then the disciplinary proceedings have

satisfied the Due Process Clause’s procedural requirements. See

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Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472

U.S. 445, 454 (1985).

Here, Petitioner contends that Respondent violated his due

process rights in two respects: (1) by not providing an impartial

fact-finder; and (2) by failing to allow him to remain in the

hearing room, to testify on his own behalf, or to present video

surveillance evidence in his own defense. (See Docket Entry 10 at

8-13.)

1. Impartial Fact-Finder

Petitioner argues that Respondent deprived him of “a hearing

before an impartial fact-finder – that is, one whose mind [wa]s not

already made up and who c[ould] give [him] a fair hearing.” (Id.

at 9 (citing, inter alia, Surprenant v. Rivas, 424 F.3d 5, 17-18

(1st Cir. 2005), and Patterson v. Coughlin, 905 F.2d 564, 570 (2d

Cir. 1990)).) Petitioner avers under penalty of perjury that the

following sequence of events occurred at his prison disciplinary

hearing:

. . . I was the first person to see [the] DHO . . . .

When I entered I was asked as follows: “All I need to

know from you is either guilty or not guilty.” I

proceeded to let [the] DHO [] know that I wished to make

an oral statement defending myself from the charge

against me, but she repeated that all she wanted to hear

was either guilty or not guilty from me. Then, I

objected to her refusal to allow me to make an oral

defense of the charge against me and told her that her

refusal to hear me was a violation of my due process

right to hear and be heard . . . . However, [the] DHO []

interrupted me and demanded an answer from me saying

“Just say guilty or not guilty.” Whereupon I said: “Not

guilty.” [The] DHO [] in a tone of voice that appeared

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to me of surprise, then stated: “You’re really gonna

plead not guilty?” I again repeated “I’m not guilty and

you’re violating my due process rights by not letting me

tell you my defense.” [The] DHO [] appeared to become

angrier and blurted the following: “You are an ignorant

idiot [and] I’m not here for all of that, you don’t have

any [expletive] rights. As a matter of fact get him out

of my office.[”] I was immediately led out of the office

and a [c]orrectional [o]fficer [] placed me back into

[RHDP] . . . . Then about two hours later, the [Record

of Hearing] w[as] brought to m[e] . . . . [The] DHO []

did not place in the Record all the above mentioned

facts. Reviewing the . . . Record of Hearing, I did not

observe pursuant to what facts did she draw her

conclusion that my presence at the hearing “unduly

threatened institutional safety or undermined

correctional goals.” Neither did I observe in this

document the reason(s) by [the] DHO [] for her denial of

the presentation of my live testimony at the hearing. .

. . Had I been allowed to marshall an oral defense of

the A-12 charge filed against me, I would have stated

that[ ] I’m factually innocent of the charge because I

had nothing on my person concerning any drugs[, ] I was

led in the [s]hower of the L-Dorm which is a high traffic

and common area and was stripped [sic] searched[ and

w]hen a person is stripped [sic] searched, he is led into

the receiving room because it is a secured area with no

traffic[, ] I would have asked [the sergeant who found

the drugs] what he meant when he said that he knew what

he was looking for at the same moment he was strip

searching m[e, and] I would have categorically denied the

outrageous comment [the sergeant] said I made concerning

the identity of the alleged substance he somehow found in

the shower of L-Dorm.

(Docket Entry 10-1 at 2-5 (standard capitalization applied and

paragraph numbering omitted).)

In further support of his allegations, Petitioner proffered

the sworn statement of inmate Nicholas B. Tart dated October 26,

2018, who averred that, while awaiting his disciplinary hearing, he

overheard the DHO “refusing to allow [Petitioner] the opportunity

to refute [the investigating officer’s] evidence and to explain his

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side of his case and evidence,” as well as telling Petitioner “‘you

don’t have any rights’” and “dismiss[ing Petitioner] out of her

office.” (Id. at 6.) According to Petitioner, the “statements and

actions [of the DHO] at the hearing displayed her lack of

impartiality.” (Docket Entry 10 at 10 (citing, inter alia, Pino v.

Dalsheim, 605 F. Supp. 1305, 1318 (S.D.N.Y. 1984)).)°

“A prisoner is entitled to have disciplinary charges against

him considered by an impartial tribunal,” Bennett v. King, Nos. 92-

7056, 93-6263, 19 F.3d 1428 (table), 1994 WL 81270, at *1 (4th Cir.

May 24, 1994) (unpublished) (citing Wolff), but “the degree of

impartiality required of prison hearing officials does not rise to

the level of that required of judges generally,” Francis v.

Coughlin, 891 F.2d 43, 46 (2d Cir. 1989) (citing Cleavinger v.

Saxner, A74 U.S. 193, 203-04 (1985)). Nevertheless, “(t]he

touchstone of due process is freedom from arbitrary governmental

action,” Ponte v. Real, 471 U.S. 491, 495 (1985) (citing Wolff, 418

U.S. at 558), and “[t]he due process requirements for a prison

disciplinary hearing . . . are not so lax as to let stand the

decision of a biased hearing officer,” Edwards v. Balisok, 520 U.S.

641, 647 (1997).

° Respondent’s Brief in support of his instant Motion for Summary Judgment

contends that the Record of Hearing “shows [that] Petitioner received all of his

due process rights.” (Docket Entry 7 at 5.) However, Respondent did not file

a reply to Petitioner’s Response in Opposition to Motion for Summary Judgment

(see Docket Entries dated Nov. 1, 2019, to present) and thus Respondent has not

speci tically addressed Petitioner’s arguments regarding the partiality of the

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In contrast to Petitioner’s (and inmate Tart’s) sworn account

of the hearing, the Respondent’s Record of Hearing provides as

follows:

Summary of all information, evidence, or statements

developed at the hearing relating to guilt or innocence:

Waiver and appeal options explained to [Petitioner] who

pled not guilty to A-12[.] [Petitioner] acknowledged the

receipt and reading of his rights. All statements and

the investigating officer’s report were read during the

hearing. With regard to evidentiary requests,

[Petitioner] made the following:

Witness Statements: None

Live Witnesses: None

Physical Evidence: Yes

Staff Assistance: No

Summary of evidence is as follows:

On 10/18/18 at 9:50AM, [a sergeant] searched [Petitioner]

and during the search [the sergeant] found a dental floss

container in the back right pocket, in the container was

an unknown amount of off white powder, [the sergeant]

asked [Petitioner] was it Molly street name for ecstasy,

and he said “yeah”.

[Petitioner] states that the evidence found was not

his[.] He states that he did not have anything and it

was not ecstasy. He states he does not know what it was.

A photo copy of the test is attached to the package.

Based on the reporting party’s statement and

investigating officer’s report, a finding of guilty is

entered for offenses A-12[.] Sanctions imposed to deter

future acts of this nature. Copy of Record of Hearing,

san[c]tions imposed, and appeal form given to

[Petitioner] by DHO. Disc[iplinary] history considered

when imposing sanctions.

(Docket Entry 7-2 at 7 (emphasis added and standard capitalization

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applied).) At the bottom of the Record of Hearing, the line for

Petitioner’s signature reads “unable to sig[n].” (Id.)

As the above-quoted material makes clear, genuine issues of

material fact remain regarding whether Respondent provided

Petitioner with an impartial fact-finder in compliance with Wolff.

The sworn statements of Petitioner and inmate Tart differ sharply

from the Record of Hearing as to (1) whether the DHO used profanity

or engaged in other unprofessional conduct towards Petitioner

and/or made any statements to the effect that Petitioner had no

rights; (2) whether the DHO permitted Petitioner to testify on his

own behalf or present other evidence; and (3) whether the DHO

ordered Petitioner removed from the hearing room, and (if so) the

grounds and circumstances under which such removal occurred.

Moreover, the Court cannot resolve these evidentiary conflicts at

the summary judgment stage, particularly given that the Record of

Hearing does not constitute a verbatim (or certified) transcript of

proceedings, lacks any indication that the DHO took Petitioner’s

statements reflected therein under oath, and contains neither

Petitioner’s signature nor an explanation for the absence of his

signature. (See id.)

The Second Circuit has persuasively addressed the types of

partiality allegations in the prison discipline context that should

withstand a motion for summary judgment. See Francis, 891 F.2d at

46. In that case, the prisoner “allege[d], inter alia, that [the

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DHO] suppressed evidence, distorted testimony, and never informed

[the prisoner] of testimony against him.” Id. The Second Circuit

rejected the DHO’s argument that the prisoner’s “specifications of

bias d[id] not show actual prejudgment” of the prisoner’s case by

the DHO, because “the issue ar[o]se[] on a motion for summary

judgment[ and] all reasonable inferences [were] drawn in favor of

[the prisoner].” Id. The court noted that “a plaintiff-inmate

armed with nothing more than conclusory allegations of bias and

prejudgment should not be able to defeat a well-supported motion

for summary judgment,” but held that the prisoner “ha[d] presented

more than a mere conclusory allegation.” Id.

Similarly, Petitioner here has presented, via two sworn

statements, “more than conclusory allegation[s] of bias,” id., and

the Court thus should deny summary judgment.

2. Opportunity to Present Evidence

a. Petitioner’s Presence at Hearing to Offer His Own Testimony

Petitioner additionally maintains that, during his prison

disciplinary hearing, he “informed [the] DHO [] several times of

his due process right to be heard,” but that the DHO “did not allow

Petitioner to speak and marshall an oral defense .. . [violating]

his most basic due process right to be heard.” (Docket Entry 10 at

8 (citing Jackson v. Cain, 864 F.2d 1235, 1252 (Sth Cir. 1989),

McCann v. Coughlin, 698 F.2d 112, 123 (2d Cir. 1983), and Mack v.

Johnson, 430 F. Supp. 1139, 1145 (E.D. Pa. 1977)); see also Docket

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Entry 10-1 at 2-4 (detailing, under penalty of perjury,

Petitioner’s account of encounter with DHO).)°® According to

Petitioner, the DHO “ordered [Petitioner] out of [the DHO’s] office

without any reasonable conclusion ‘that [Petitioner’s] presence

would unduly threaten institutional safety or undermine

correctional goals.’” (Docket Entry 10 at 8-9 (quoting Malik v.

Tanner, 697 F. Supp. 1294, 1302-03 (S.D.N.Y. 1988), and citing

Battle v. Barton, 970 F.2d 779, 782 (11th Cir. 1992)); accord

Docket Entry 10-1 at 3-4.)

Although the United States Supreme Court in Wolff did not

expressly hold that due process includes “a prisoner’s right to

attend his own disciplinary hearing[, sleveral courts[ ] have

indicated that such a right is implicit in the prisoner’s right to

call witnesses and present documentary evidence at the hearing.”

Battle, 970 F.2d at 782 (citing Moody v. Miller, 864 F.2d 1178,

1180 (5th Cir.1989), and Freeman v. Rideout, 808 F.2d 949, 953 (2d

Cir. 1988)). An inmate’s presence at his disciplinary hearing

®° Petitioner also argues that the DHO, in refusing to permit Petitioner to

speak on his own behalf, violated Section .0205(c) (1) (G) of the DPS Offender

Disciplinary Procedures, “which unambiguously allow[ed] Petitioner to refute the

evidence at the disciplinary hearing.” (Docket Entry 10 at 8 (emphasis in

original); see also Docket Entry 7-3 at 14.) However, “the DHO’s failure to

follow DPS policy does not, on its own, constitute a constitutional violation.”

Williams v. Joyner, Civ. No. 5:15-HC-02187, 2017 WL 3821694, at *3 (E.D.N.C. Aug.

8, 2017) (unpublished), recommendation adopted, 2017 WL 3820949 (E.D.N.C. Aug.

31, 2017) (unpublished) (citing Riccio v. County of Fairfax, Va., 907 F.2d 1459,

1469 (4th Cir. 1990) (“If state law grants more procedural rights than the

[United States] Constitution would otherwise require, a state’s failure to abide

by that law is not a federal due process issue.”)).

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serves the goals of due process by “allowing the inmate to witness

the proceedings against him and providing a check on the authority

of the disciplinary body.” Id. However, the Supreme Court has

also made clear that the prison’s competing interests in

maintaining institutional safety and meeting other correctional

goals can curtail the rights of inmates at disciplinary hearings,

and that the prison satisfies due process “so long as the reasons

[for depriving an inmate of his rights] are logically related to

institutional safety or correctional goals.” Ponte, 471 U.S. at

497 (internal quotation marks omitted); see also Brown v. Braxton,

373 F.3d 501, 505 (4th Cir. 2004) (recognizing that prison may

limit (or deny) inmate’s right to present evidence in own defense

at disciplinary hearing where “legitimate penological interests

justified” such limitation or denial (citing Wolff, 418 U.S. at

566)). “[T]he burden of persuasion as to the existence and

sufficiency of such institutional concerns . . . is borne by the

prison officials, not by the prisoners.” Grandison v. Cuyler, 774

F.2d 598, 604 (3d Cir. 1985) (citing Ponte, 471 U.S. at 499-500).

In Respondent’s Brief in support of his Motion for Summary

Judgment, he contends that the Record of Hearing “shows [that]

Petitioner received all of his due process rights” and that “[h]e

was given . . . an opportunity [to] present documentary evidence in

his defense.” (Docket Entry 7 at 5.) That statement, at most,

leaves the Court with a material factual dispute, in light of the

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uncertified, summary nature of the Record of Hearing and

Petitioner’s sworn statement (and that of inmate Tate) that the DHO

refused to provide Petitioner with an opportunity to testify on his

own behalf, ordered Petitioner removed from the hearing room, and

conducted the disciplinary hearing in his absence (see Docket Entry

10-1). Most significantly, Respondent has not borne his burden of

showing that the DHO’s “reasons [for refusing to take Petitioner’s

testimony and removing him from the hearing we]re logically related

to institutional safety or correctional goals,” Ponte, 471 U.S. at

497.

Under such circumstances, genuine issues of material fact

remain that preclude summary judgment on Petitioner’s claim that

the DHO violated Petitioner’s due process rights by failing to

allow Petitioner to remain present during the hearing and to

testify on his own behalf. See Mayweather v. Guice, No. 1:17CV100,

2018 WL 3868806, at *7 (W.D.N.C. Aug. 14, 2018) (unpublished)

(“Plaintiff[’s ] alleg[ations] that [the DHO] refused to allow

[Petitioner] to present evidence at his disciplinary hearing . . .

state a plausible due process claim against [the DHO] and this

claim will be permitted to proceed.”).

b. Request for Video Surveillance Evidence

Lastly, Petitioner contends that, “[b]efore [his] disciplinary

hearing was held, he requested the videotape of L-Dorm during the

time of the [sergeant’s search of Petitioner resulting in the A-12

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charge],” which “would have shown that L-Dorm[’s s]hower [a]rea

[wa]s a high traffic and common area and would have shown

Petitioner’s innocence[,]” but that the DHO “did not review said

video nor did she state[] a reason why [she did not review the

video].” (Docket Entry 10 at 13; see also Docket Entry 10-1 at 2-

5.) Petitioner asserts that he possessed “a limited due process

right to examine, or have produced at the hearing, documents in

prison official[s’] possession that m[ight have] help[ed] determine

[his] guilt[] or innocence.” (Docket Entry 10 at 13 (citing Piggie

v. Cotton, 344 F.3d 674, 678 (7th Cir. 2003)).)

“[P]rison video surveillance evidence constitutes documentary

evidence subject to the procedural due process protections

recognized in Wolff.” Lennear v. Wilson, 937 F.3d 257, 269 (4th

Cir. 2019). In that regard, “upon request, an inmate is entitled

to access 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.’” Lennear, 937 F.3d at 269 (quoting

Wolff, 418 U.S. at 566) (emphasis added); see also id. at 270

(holding that “prison officials must consider . . . requests for

video surveillance evidence[] on an individualized basis” (internal

quotation marks omitted). Moreover, “prison officials bear the

‘burden to come forward with evidence of the reasons for’ denying

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an inmate’s request for access to . . . video surveillance

footage,” id. at 270 (quoting Smith v. Massachusetts Dep’t of

Corr., 936 F.2d 1390, 1400 (lst Cir. 1991)), although the

“officials may wait to assert such institutional concerns until

after the disciplinary hearing,” id. (citing Ponte, 471 U.S. at

497). However, if such “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.” Id. (quoting

Smith, 936 F.2d at 1400) (emphasis added).

Respondent asserts that the “[R]ecord of [ H]learing shows

Petitioner received all of his due process rights[ and ] was given

. . an opportunity [to] present documentary evidence in his

defense.” (Docket Entry 7 at 5.) A careful review of the Record

of Hearing and other record material undermines that assertion. To

begin, the Record of Hearing supports Petitioner’s averment that he

requested video surveillance evidence pertinent to his case:

Waiver and appeal options explained to [Petitioner] who

pled not guilty to A-12[.] [Petitioner] acknowledged the

receipt and reading of his rights. ... With regard to

evidentiary requests, [Petitioner] made the following:

Witness Statements: None

Live Witnesses: None

Physical Evidence: Yes

Staff Assistance: No

(Docket Entry 7-2 at 7 (emphasis added).) Petitioner’s statement

to prison officials confirms the specifics of the “[p]hysical

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[e]vidence” requested by Petitioner (as reflected in the Record of

Hearing) as “camera footage, also lab results of substance.” (Id.

at 13 (emphasis added); see also id. (“I was led to the [s]hower

area in Unit 3 L dorm, which camera footage is requested and will

show the dorm shower is a very common [a]rea with heavy traffic and

activity.” (emphasis added))}).) The Investigating Officer’s Report

further bolsters Petitioner’s position by stating:

[Petitioner] understood and signed his rights as they are

stated on the DC-138A form. He did not request written

statements gathered on his behalf or live witnesses at

his hearing. He did request physical evidence in the

form of camera footage and lab results of the substance

[found on Petitioner]. He did not request staff

assistance.

(Id. at 8 (emphasis added and standard capitalization applied.)

Despite this evidence consistently reflecting that Petitioner

did, in fact, request the videocamera footage capturing the

sergeant’s search of Petitioner resulting in the A-12 charge, the

Record of Hearing does not indicate what action, if any, the DHO

took with regard to Petitioner’s request. (See id. at 7.)

Similarly, none of the other documents in Petitioner’s disciplinary

package reflect whether the investigating officer or the DHO took

any action at all with respect to Petitioner’s request for the

videocamera footage. (See Docket Entry 7-2.) Furthermore,

Respondent did not address the video surveillance evidence in his

Brief in support of his Motion for Summary Judgment (see Docket

Entry 7) and has not filed a reply brief (see Docket Entries dated

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Nov. 1, 2019, to present). Thus, to date, Respondent has not

provided the Court with any information to explain how prison

officials addressed Petitioner’s request for the video evidence.

In other words, “prison officials never have offered any safety or

correctional goal – neither during the disciplinary proceedings nor

in these proceedings – justifying [a] decision to deny access to

and review of the requested video surveillance evidence, meaning

that [at least at this stage] penological considerations cannot

justify [any] alleged refusal to disclose or consider such

evidence.” Lennear, 937 F.3d at 274.

“[B]ecause Petitioner provided an uncontroverted sworn

affidavit that he timely requested the video surveillance evidence,

without holding an evidentiary hearing[,] the ‘[ C]ourt c[an]not

properly assume that [Respondent]’s perspective is the right one.’”

Id. at 275 (quoting Johnson v. Finnan, 467 F.3d 693, 694-95 (7th

Cir. 2006)). Put another way, this Court neither may “‘speculate’

as to [any] potential reasons for denying [Petitioner] access to

[video surveillance] evidence in order to uphold a disciplinary

decision,” id. at 270 (quoting Smith, 936 F.2d at 1400), nor may

“resolve in the first instance” the “question[s] of fact” of

“whether a video of the [search of Petitioner resulting in the A-12

charge] ever existed,” id. at 276, and/or “whether the [video

surveillance] evidence could have aided [Petitioner’s] defense,”

id. at 277.

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Accordingly, the Court should deny Respondent’s Motion for

Summary Judgment on Petitioner’s claim that the DHO violated

Petitioner’s due process rights by failing to address his request

for the video surveillance evidence pertinent to his case.

V. Conclusion

IT IS THEREFORE RECOMMENDED that Respondent’s Motion for

Summary Judgment (Docket Entry 6) be denied and that this matter be

set for an evidentiary hearing, with counsel appointed for

Petitioner pursuant to Rule 8(c) of the Rules Governing Section

2254 Cases.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

January 29, 2020

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