The opinion of the court was delivered by: Magistrate Judge Baxter
Petitioner Ryan Whiteoak is a federal prisoner who is presently incarcerated at the Federal Correctional Institution ("FCI") in Loretto, Pennsylvania. Prior to his recent transfer to FCI Loretto, Petitioner was incarcerated at FCI McKean. During his incarceration there, he was a participant in one of it Residential Drug Abuse Program ("RDAP") classes (also called a cohort).*fn2
On April 4, 2009, an officer conducted a random search of Petitioner's cell and found packets of matches. The next day, Incident Report No. 1853181 was lodged against him, charging him with Possession of Any Property Unauthorized, in violation of Offense Code 305. (See Incident Report No. 1853181, Ex.*fn3 10). The Unit Disciplinary Committee ("UDC") subsequently found that Petitioner had committed the misconduct. As a consequence, Petitioner was removed from his RDAP cohort and placed in another one with a later graduation date.
On or around May 21, 2009, Petitioner filed with this Court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. [Docket No. 1]. He claims that the disciplinary proceedings relating to Incident Report No. 1853181 violated his due process rights. He also claims that the formal Drug Abuse Treatment ("DAT") warning that was issued as a result of the misconduct was unlawful.*fn4 As relief, Petitioner seeks an order from this Court directing that Incident Report No. 1853181 be expunged so that he can maintain his status in his original RDAP and be permitted to graduate from the program as soon as possible. He also seeks an order from this Court terminating his supervised release.
On June 16, 2006, the United States District Court for the Eastern District of Pennsylvania sentenced Petitioner to a 60 month term of imprisonment, to be followed by a 4 year term of supervised release, for his conviction of "Possession with Intent to Distribute more than 100 kilograms of Marijuana," in violation of 18 U.S.C. § 841(a)(1). His projected release date is January 4, 2011.
In December 2007, Petitioner was found eligible to participate in the RDAP and for early release consideration upon completion of that program. (Declaration of Kent Cannon, DAT Coordinator, ¶ 4, attached to Response [Docket No. 12]). Petitioner signed an agreement in which he acknowledged that he was informed that immediate expulsion from the RDAP ordinarily would result if the participant pursuant to an incident report is found by a Disciplinary Hearing Officer ("DHO") to have committed a 100 series prohibited act; or, committed a prohibited act involving alcohol or drugs after completing the unit based segment of the program. Petitioner also acknowledged that he was informed that he could be expelled from the RDAP "[w]hen I incur an incident report because I have failed to follow rules and regulations[.]" (See Agreement to Participate in RDAP, Ex. 2).
On August 27, 2008, Petitioner began the RDAP. He was placed in a cohort with DAT Specialist Lori Carlson and was scheduled to graduate from the RDAP on June 3, 2009. (Cannon Decl. ¶ 6).
On April 4, 2009, Senior Officer Jensen conducted a random search of cell F04-111, where Petitioner was assigned. During the search, the officer found a plastic bag with approximately 20 packets of matches located inside a laundry bag. Incident Report No. 1853181 was issued and Petitioner was charged with Possession of Any Property Unauthorized, in violation of Offense Code 305. The UDC subsequently found that Petitioner committed the violation and recommended that he be sanctioned with 60 days loss of commissary and 20 hours extra work duty. (Incident Report No. 1853181, Ex. 10).
Ms. Carlson and other RDAP staff considered the matches found in Petitioner's cell to be drug paraphernalia and Petitioner was going to be expelled from the RDAP. He was not expelled, however, because the Regional RDAP Coordinator advised FCI McKean that there was not sufficient basis for expulsion. (4/15/09 Memo, Ex. 6). Instead, a decision was made to place Petitioner in another cohort with a graduation date scheduled for February 3, 2010. (See Cannon Decl. ¶ 7). Petitioner also received a formal warning because he was found to have committed the misconduct at issue in Incident Report No. 1853181. Because it was Petitioner's third such warning,*fn5 he was placed on probationary status and informed that if he received another warning or incident report, he would be expelled from the RDAP. (RDAP Formal Warning, Ex. 7).
On or around May 21, 2009, Petitioner filed with this Court a petition for writ of habeas pursuant to 28 U.S.C. § 2241. He challenges the disciplinary proceedings related to Incident Report No. 1853181. Petitioner claims that his due process rights were violated because the Incident Report contained misrepresentations and because he was not permitted to call witnesses at his UDC hearing. He also claims that the resulting formal warning was unlawful. As relief, he asks this Court to order that Incident Report No. 1853181 be expunged; that he be allowed to maintain his status in the RDAP and graduate as soon as possible; and, that his supervised release be terminated.
Petitioner filed a motion for preliminary injunction a few days after he filed his habeas petition. On June 11, 2009, the Court held a telephonic hearing during which Respondent's counsel explained that on or around May 26, 2009, the DAT Coordinator had moved Petitioner to another cohort so that he only had to repeat the last phase of FCI McKean's RDAP component. As a result, Petitioner's projected RDAP graduation was moved up to August 24, 2009. In light of the new information, Petitioner's motion for injunction was denied as moot.
On August 3, 2009, Respondent submitted the Response To Petition For Writ Of Habeas Corpus And/Or Notice of Suggestion of Mootness. [Docket No. 12]. Respondent explains therein that after the hearing on the preliminary injunction, Petitioner committed another and more serious misconduct and has been expelled from the RDAP altogether. Specifically, Respondent explains that on June 16, 2009, at approximately 11:40 p.m., FCI McKean was notified by local law enforcement that there was a suspicious looking vehicle in front of the institution. A Correctional Officer was sent to search the area, and he found two large garbage bags filled with the following contraband: 21 cartons of cigarettes, 12 cans of Skoal, 1 cell phone with charger, 1 jar of protein powder, 24 bars of soap, 2 containers of wipes, 2 cheese cakes, 7 sandwiches, 4 spices, 2 olive oil, 2 packs of garlic, 4 steaks, 2 coat hooks, 1 cooler, 2 ...