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Tenth Circuit Applies Harmless Error in Prison Discipline

The Tenth Circuit Court of Appeals held that precluding a prisoner from presenting witness testimony at a prison disciplinary proceeding was harmless error.

Kansas prisoner Patrick Grossman was charged with inciting a riot in relation to a December 21, 2002 incident in the prison chowhall. Guards found a tattoo pattern while searching his cell and charged him with "less dangerous contraband" as well.

During his disciplinary hearing, Grossman asked to have guard Mark Fryhoff testify concerning the incident in the dining room. The request was denied as untimely. The government later conceded that the request had been timely.

The disciplinary board considered a report from guard Don Langford, who was not present in the chowhall. Langford's report indicated that Grossman told him "he had an argument with an Aramark Food Service Supervisor concerning her not wearing a hairnet." The report also indicated that Fryhoff was "unsure of the comments made by Grossman because there was so much noise. However, Fryhoff observed that Grossman was participating in an incident when inmates were banging food trays and calling for an Aramark Food Services Supervisor to put on a hairnet."

Grossman was convicted of both charges. On the riot conviction he was sanctioned to 45 days in segregation, 60 days restriction time, a $25 fine and loss of six months of good-time credits. On the contraband conviction, Grossman was sanctioned to 7 days in segregation and 30 days restriction time.

Grossman filed a federal habeas corpus petition under 28 U.S.C. § 2254, which was characterized as an action under 28 U.S.C. § 2241. The district court denied several claims for failure to exhaust administrative remedies. It then denied Grossman's procedural due process claim on the merits.

The Tenth Circuit addressed only the procedural due process claim. The appellate court noted that "Grossman's request to have Fryhoff testify at the disciplinary hearing was denied on the ground that it was untimely. The defendants now concede that his request was timely." Citing Wolff v. McDonnell, 418 U.S. 539 (1974) and Ramer v. Kerby, 936 F.2d 1102, 1105 (10th Cir. 1991), the appeals court concluded that the decision to deny Grossman's request that Fryhoff testify "was clearly made in error."

The Tenth Circuit joined the Second, Fourth and Seventh Circuits, however, in holding "that errors made by prison officials in denying witness testimony at official hearings are subject to harmless error review." See also Powell v. Coughlin, 953 F.2d 744, 750 (2nd Cir. 1991); Brown v. Braxton, 373 F.3d 501, 508 (4th Cir. 2004); and Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003).

Applying that standard, the appellate court concluded that the error was harmless because Fryhoff's testimony would not have aided Grossman's defense. See: Grossman v. Bruce, 447 F.3d 801 (10th Cir. 2006).

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Related legal case

Grossman v. Bruce