Submitted August 27, 2015
Plaintiff Brunce Smith moves for appointment of counsel in his appeal from the dismissal of his suit under 42 U.S.C. § 1983 alleging that prison officials violated his procedural due process rights in connection with a disciplinary hearing. We deny the motion because the appeal lacks likely merit, Cooper v. A. Sargenti Co., 877 F.2d 170, 173 (2d Cir. 1989) (per curiam), and, having considered the merits, dismiss the appeal as frivolous.
BRUNCE SMITH, Pro se, Dannemora, NY.
JONATHAN D. HITSOUS, ESQ., Assistant Solicitor General, Albany, NY, for Appellees.
Before: WINTER, WALKER, and JACOBS, Circuit Judges.
Plaintiff Brunce Smith moves for appointment of counsel in his appeal from a judgment of the United States District Court for the Northern District of New York (D'Agostino, J. ), entered on September 26, 2014, dismissing his complaint on summary judgment. The underlying issue is whether an inmate may implicitly waive his right to attend a disciplinary hearing. Extending our reasoning in Bedoya v. Coughlin,
91 F.3d 349 (2d Cir. 1996) (holding that an inmate may waive his right to call
witnesses by remaining silent), we conclude that an inmate may likewise
implicitly waive the right to attend his disciplinary hearing by refusing to
attend after receiving
notice and being given an opportunity to attend. We therefore
deny the motion and dismiss the appeal as frivolous.
The undisputed facts are as follows. A misbehavior report, charging Smith with attacking another inmate, advised him that the " case must be heard within 7 days if inmate is confined" and that " inmate attendance at [the] hearing is voluntary." Smith signed the form to acknowledge receipt, designated an assistant to help him defend the charge, and requested that another inmate, Watson, be called as a witness.
The day the case was to be heard, two guards brought Smith to the hearing room. Smith asked the whereabouts of Hearing Officer Joseph Wolczyk, was told that he was on his way, and then asked to return to his cell. He did not explain his decision and refused to sign a form acknowledging his refusal to attend. Officer Wolczyk found that Smith had voluntarily waived his right to attend the hearing and conducted the proceedings in his absence.
After the hearing began, Officer Wolczyk sent guards to Smith's cell to ask if he still wanted to call inmate Watson as a witness. Smith ...