Second Circuit Upholds Implicit Waiver of Appearance at Disciplinary Hearing
Bruce Smith was a New York state prisoner when he was charged with the disciplinary infraction of fighting with another prisoner. On the day of his disciplinary hearing, Smith was brought to the hearing room, but the hearing officer was not present. Smith asked where the officer was and was told he was on his way. Smith then asked to be returned to his cell.
After arriving at the hearing room, the disciplinary officer determined that Smith had waived his right to appear. He sent word to Smith's cell asking if he still wanted to call a witness and Smith replied that he had no questions. Smith was convicted of the disciplinary violation and sentenced to 12 months in a Special Housing Unit and forfeiture of 12 months of good time credit and other privileges.
Eleven months into the sentence, a state court reversed the disciplinary hearing disposition, holding that "Smith had not made a knowing, voluntary, and intelligent waiver of his right to attend the hearing because there was no evidence he was 'informed of that right and the consequences of failing to appear at the hearing.'" Smith then filed a federal civil rights action, pursuant to 42 U.S.C. § 1983, alleging violations of his due process rights. At issue was whether a prisoner could implicitly waive appearance at a disciplinary hearing.
The district court recognized Smith was deprived of a liberty interest based on his eleven-month SHU confinement, but concluded he was afforded all of the due process required by federal law. Smith appealed and filed a motion for appointment of appellate counsel.
The Second Circuit held that federal law requires only that a prisoner facing disciplinary action be given notice of the charges and an opportunity to be heard. The prisoner may waive his right to attend his disciplinary hearing by refusing to attend after receiving notice and being given an opportunity to attend. Smith's conduct constituted a knowing and voluntary waiver of his right to attend the disciplinary hearing. Thus, his appeal has no arguable merit. Therefore, his appeal was dismissed as frivolous and his motion for appointment of counsel denied. See: Smith v. Fischer, 2nd Cir., No. 14-3857 (decided October 5, 2015).
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Related legal case
Smith v. Fischer
| Year | 2015 |
|---|---|
| Cite | 2nd Cir., No. 14-3857 (decided October 5, 2015) |
| Level | Court of Appeals |
| Conclusion | Bench Verdict |
| Injunction Status | N/A |