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