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HERNANDEZ-SEVERIO v. DeROSA

September 13, 2005.

YOUANNY HERNANDEZ-SEVERIO, Petitioner,
v.
C.J. DeROSA, Respondent.



The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge

OPINION

Petitioner Youanny Hernandez-Severio, a prisoner confined at the Federal Correctional Institution at Fort Dix, New Jersey, has submitted a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241,*fn1 challenging the results of a prison disciplinary proceeding. The sole respondent is Warden C.J. DeRosa.

For the reasons set forth below, the Petition will be denied.

  I. BACKGROUND

  On March 16, 2002, while Petitioner was incarcerated pursuant to a criminal conviction and sentence imposed in the U.S. District Court for the District of Puerto Rico, a correctional officer conducted a routine search of Petitioner's locker and found seven capsules printed with the word "Hydroxycut" in a jar labeled for Vitamin C. An incident report was issued charging Petitioner with a violation of Offense Code 113, Possession of any Narcotic, Marijuana, Drugs, or Related Paraphernalia Not Prescribed for the Individual by the Medical Staff. The incident report was delivered to Petitioner on March 17, 2002.

  The Unit Discipline Committee ("UDC") conducted a hearing on March 21, 2002. The UDC referred the matter to the Discipline Hearing Officer ("DHO"), with a recommendation for all sanctions applicable for commission of Offense Code 113, if Petitioner were found to have committed the prohibited act. (Answer, Ex. 1c, Incident Report No. 974181.)

  The DHO hearing took place on March 28, 2002. Petitioner admitted that the pills were his. He stated that they were not narcotics, but were for weight reduction. Petitioner's medical file confirmed that the pills had not been prescribed to Petitioner. On April 22, 2002, the DHO issued his report finding that Petitioner had committed Offense Code 113. The DHO imposed sanctions including loss of 94 days good conduct time and loss of other privileges.

  Petitioner pursued the Bureau of Prisons' Administrative Remedy Program, 28 C.F.R. § 542.10 et seq., by filing an appeal with the Regional Director. Petitioner contended that:
The Code 113 should be a code 305 or 302 and not the 113. The medication wasn't narcotic and no where in the record was medical staff contacted to verify what grade of medication the alleged narcotics was.
(Petitioner's Ex. 4.) In denying Petitioner's appeal, the Regional Director stated:
You contend the medication was not proven to be a narcotic. You admitted to the DHO that the pills belonged to you. You stated they were not narcotics, but were for weight reduction. The prohibited act is committed when an inmate possesses any narcotic, marijuana or drug not prescribed by medical staff for his individual use. The pills are considered a drug and do not have to be a narcotic drug. Even if, as you claim, another inmate did give you the pills, you were not authorized to possess them as they were not prescribed for you. Based on the evidence presented, the DHO reasonably determined you committed the prohibited act of possession of any drug not prescribed by medical staff.
(Petitioner's Ex. 5.)
  Petitioner then appealed to the BOP's Central Office, contending that:
"Staff incorrectly wrote the wrong code for the Prohibited Act Code 113. . . . HYDROXYCUT is a supplement. . . . The Incident Report should have been 302 Misuse of unauthorized medication, or 305 Possession of anything not authorized for retention or receipt by the inmate, and not issued to him through the regular channels.
(Petitioner's Ex. 6.) The Administrator, National Inmate Appeals, denied the appeal, stating, "As to the substance confiscated, the substance is considered a drug, contrary to your assertion." (Petitioner's Ex. 7.)

  On May 21, 2003, this Court received this Petition, in which Petitioner admits possession of the seven Hydroxycut capsules. Petitioner asserts, however, that he should have been charged with an Offense Code 305, which carries lesser sanctions than the Offense Code 113, because Hydroxycut is a supplement rather than a drug. He asserts that laboratory testing should have been performed to determine the specific nature of the substance seized.

  On August 20, 2003, while the Petition was pending in this Court, the BOP's National Inmate Discipline Administrator forwarded an electronic mail message to the DHOs:
The purpose of this e-mail is to reiterate a decision regarding inmate's possession of substances such as Creatine, Nortesten, and Hydroxycut.
In the past, inmates were written incident reports for Possession of Narcotics or Drugs when these or similar substances were found in their possession. However, the most appropriate prohibited act code would be Possession of Anything Not Authorized as these substances are considered as dietary supplements by the Food and Drug Administration and are not regulated as a drug. (Answer, Hebbon Declaration ¶ 5 and Ex. 1e.)
  On August 26, 2003, the DHO issued an amended DHO Report respecting Petitioner's Incident Report, amending the Findings and Sanctions portions of the Report to find that Petitioner had committed the prohibited acts for Offense Code 305, Possession of Anything Unauthorized. He imposed sanctions including disallowance of 13 days good conduct time and forfeiture of 13 days non-vested good conduct time, for a total loss of 26 days good conduct time. Petitioner was advised of the amended DHO Report and of his right to appeal from that amended DHO Report under the Administrative Remedy procedure.

  As a result of these intervening events, Respondents suggest that this Petition is moot and that this Court should reject any attempt to challenge the amended sanctions.

  Petitioner replies that the Petition is not moot, that he should not be required to start anew appealing the DHO Report that was amended as a result of the administrative appeals, and that the charges should have been dismissed, rather than amended, as a result of the change in policy reflected in the e-mail from the BOP's National Inmate Discipline Administrator. (Traverse.)

  Because Petitioner is not entitled to relief under his revised theory of due process deprivation, this Court need not determine whether the case is moot or whether Petitioner should be required to pursue ...


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