FEINBERG, Circuit Judge:
Aharon Ron appeals from a judgment of the United States District Court for the District of Connecticut, Jon O. Newman, J., dismissing his petition for a writ of habeas corpus. The basis of appellant's petition was that he had been unlawfully denied 90 days of statutory good time after an improper prison disciplinary proceeding. The district court considered only petitioner's papers and did not require any answer from respondents or conduct any hearing. We hold that, on this record, it was error to dismiss the petition.
Appellant, who was convicted of various federal offenses in 1973, is now a prisoner in the Federal Correctional Institution at Danbury, Connecticut.
It is important to focus on what the petition presented to the district court, since the judge ruled merely on the papers before him. The petition claimed that the barn was not off limits to appellant, that he had been there many times before with permission from Prison Counselor Moses, that the visitor was an authorized visitor, that appellant did nothing improper with his visitor, and that there was an innocent reason, set out in detail in the petition, for the two of them to be where they were found.
The petition also alleged that petitioner "does not communicate well in the English language," that he was presented with three forms before his IDC hearing, that he did not understand the forms and refused to sign any except the one requesting Prison Counselor Moses as his representative, that appellant was told that he had to sign all the papers or none, and that "accordingly [he] was not permitted to request a representative."
Petitioner claimed that this penalty was imposed without due process of law because he "was denied a representative he wanted and needed . . ., because he did not understand the proceedings and could not defend himself," because the "IDC was not impartial" (apparently, the McCroskeys are related),
As indicated above, the judge did not require any answer to this petition or conduct a hearing, but dismissed the petition sua sponte. The judge's written memorandum stated that petitioner's "disciplinary record now reflects only a finding of guilt on the charge of being in an unauthorized place," for which 90 days good time has been forfeited, and that the only real issues at the disciplinary hearing were whether the barn "was an authorized area" and whether petitioner "was aware that it was unauthorized." On this, the judge concluded that the papers before him and "plain common sense" allowed only answers unfavorable to petitioner.
Turning to the lack of representation at the hearing, the judge held that petitioner had no constitutional right to counsel at the prison disciplinary hearing, but acknowledged that under the Federal Bureau of Prisons Policy Statement, see note 4 supra, petitioner did have the right to substitute representation and that the hearing arguably "did not conform precisely" to the requirements there set forth. However, the judge concluded that
Petitioner's other arguments were rejected summarily. Following commendable local practice, even though the petition was dismissed the United States Attorney was served with copies of all relevant papers and he has appeared in the appellate proceedings.
Petitioner raises here essentially the same claims that were pressed in the district court. We conclude that the district court erred in dismissing the petition. We reach this result reluctantly because we wish neither to interfere with responsible prison authorities nor to overrule a trial judge who deals with these problems week in and week out in a fair and informed manner. Nevertheless, as we view the applicable law and the facts, we believe that we have no choice.
To begin with, the loss of 90 days good time is a constitutionally significant penalty. The constitutional claim to the right of some type of representation at the IDC hearing was a serious one. While the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), did decline to hold that inmates have a right to counsel in disciplinary proceedings, see also Baxter v. Palmigiano, 425 U.S. 308, 315, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), the Court did state that there was a
Wolff v. McDonnell, supra, 418 U.S. at 570, 94 S.Ct. at 2982.
Petitioner claims that such "substitute aid in the form of help from the staff" was his constitutional right because of his difficulty in communicating in English. (It was clearly his right under Federal Bureau of Prisons policy whether or not he was literate. See note 4 supra). Without some sort of response conclusively demonstrating petitioner's literacy, or a hearing to resolve the issue, the district court could not decide whether petitioner was constitutionally entitled to a representative at the disciplinary hearing. The reference to petitioner's "recalcitrance" in seeking to sign one form (asking for representation) and not the others (acknowledgements of notice of hearing and rights at the hearing) can only be speculative on this record. It is just as possible that Counselor Moses only explained the representation form to petitioner or that, if all three were explained, petitioner only understood the one he was willing to sign. In any event, we do not see why failure to sign the two other forms must necessarily have deprived petitioner of representation, if he was otherwise entitled to it.
The district court felt that any error in failure to provide representation was harmless because "even the most forceful advocate" could not have brought about a different result. We put to one side the question whether wrongful denial of representation at a prison disciplinary proceeding, like wrongful denial of counsel at a criminal trial, can ever be harmless error. See, e. g., Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976). It is by no means apparent that substitute representation would have been fruitless. Petitioner in the first instance was interested in reducing, as well as eliminating, his penalty, and the later reduction from 280 to 90 days within the administrative appeal process indicates that further reduction was at least a possibility.
Moreover, an alert representative would also have objected to the conflict of interest apparent in having related persons on the UDC, which first brought the charges, and the IDC, which first heard them. While we do not hold that the interrelationship presented here, in the context of prisoner disciplinary proceedings, necessarily denied appellant an impartial hearing,
One further matter should be discussed. Referring to a number of recent decisions of this court,
But we are also aware that "automatic service" of pro se complaints would place burdens "on public officials and private persons to respond to many totally frivolous complaints." See Pugh v. Hull, 419 F.Supp. 39, 40 (D.Conn.1976) (failure to exhaust state judicial remedies apparent on face of petition). And we do not suggest that "automatic service" of such petitions upon respondents is called for. As the new habeas corpus rules recognize,
Id. at 57. We do not believe that frivolous prisoner petitions require answering papers by the correct public official or a full-fledged hearing, but the lack of merit of the petition should be unmistakable to justify sua sponte dismissal. See American Bar Association Project On Standards For Criminal Justice, Standards Relating to Post-Conviction Remedies § 4.2 (Approved Draft, 1968).
Case remanded for further proceedings consistent with this opinion.