Smith v. Fischer, 803 F.3d 124

Smith, a New York inmate, received a misbehavior report charging him with assault and was notified that attendance at the disciplinary hearing was voluntary; he acknowledged receipt, designated an assistant, and requested a witness (Watson).
At the scheduled hearing Smith was escorted to the hearing room, asked where the hearing officer was, then told to be returned to his cell; he asked to leave, refused to participate, and declined to sign a refusal form.
Hearing Officer Wolczyk proceeded in Smith’s absence, later confirming by sending guards to Smith’s cell that Smith declined to call his witness or ask questions; Smith was found guilty and sentenced to SHU and loss of good-time credits.
Smith exhausted state remedies; a state court later reversed the disciplinary finding on state-law waiver-notice grounds and ordered restoration of good-time credits; DOCCS administratively reversed the determination.
Smith sued under 42 U.S.C. § 1983 claiming federal due process violations for not being informed of his right to attend and consequences of nonattendance; the district court granted summary judgment for defendants, finding Smith waived attendance.
On appeal Smith moved for appointed counsel; the Second Circuit reviewed de novo whether Smith knowingly and voluntarily waived his right to attend and denied counsel, dismissing the appeal as frivolous.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an inmate may implicitly waive the right to attend a disciplinary hearing	Smith: He was not informed of the right to attend or consequences of failing to appear; thus no knowing, voluntary waiver	Defendants: Smith received notice and an opportunity to attend but voluntarily refused to participate; that constitutes a waiver	Court: An inmate may implicitly waive attendance by refusing to attend after receiving notice and an opportunity to be present; Smith waived his right
Whether the district court erred in granting summary judgment and denying counsel	Smith: His claim has merit because state court found no knowing waiver under state law	Defendants: Federal due process (Wolff) requires only notice and opportunity to attend; those were provided	Court: No arguable federal-law merit; denial of counsel appropriate and appeal frivolous
Preclusive effect of state-court reversal	Smith: (raised below) state decision should preclude defendants	Defendants: State ruling addressed state-law procedural guarantees, not federal due process; no preclusion	Court: Smith abandoned preclusion argument on appeal; state decision did not have preclusive effect on § 1983 claim

Bedoya v. Coughlin, 91 F.3d 349 (2d Cir. 1996) (inmate can waive right to call witnesses by remaining silent when given a clear opportunity)
Wolff v. McDonnell, 418 U.S. 539 (1974) (constitutional minimum due process requirements for prison disciplinary proceedings)
Neitzke v. Williams, 490 U.S. 319 (1989) (action is frivolous if based on indisputably meritless legal theory or clearly baseless factual contentions)
Luna v. Pico, 356 F.3d 481 (2d Cir. 2004) (summarizing Wolff protections applicable before SHU confinement)
Young v. Hoffman, 970 F.2d 1154 (2d Cir. 1992) (recognizing inmate right to appear at disciplinary hearing)