BLD-283 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2731

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KERRY X. MARSHALL, Minister,

Appellant

v.

PENNSYLVANIA DEPARTMENT OF CORRECTIONS; SECRETARY OF 

CORRECTIONS; JOHN DOE #1, Deputy Secretary of Eastern Region; ULLI KLEMM, 

Director of Bureau of Treatment Services; JOHN DOE #2, #3 AND #4, Religious 

Accommodation Review Committee members; JOHN KERESTES, SCI-Mahanoy 

Superintendent; J. MACKNIGHT, SCI-Mahanoy Inmate Program Manager; JOHN DOE 

#5, SCI-Mahanoy Food Service Manager; GRIEVANCE OFFICER JOHN DOE #6; SCIMahanoy Major of the Guard; JOHN DOE #7, SCI-Mahanoy Deputy Superintendent for 

Facility Management; JOHN DOE #8, SCI-Mahanoy Deputy Superintendent for 

Centralized Services; DORINA VARNER, Department of Corrections Chief Grievance 

Officer; BERNEDETTE MASON, SCI-Mahanoy Grievance Coordinator, sued in their 

individual and official capacities

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 12-00351)

District Judge: Honorable A. Richard Caputo

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

September 13, 2012

Before: SCIRICA, SMITH and CHAGARES, Circuit Judges

(Opinion filed September 27, 2012)
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_________

OPINION

_________

PER CURIAM

Because we write primarily for the parties, who are fully familiar with the 

background of this case, we set forth only the facts and procedural history that are of 

central relevance to our decision. Appellant Kerry X. Marshall,1then an inmate at the 

State Correctional Institution at Fayette, filed a pro se civil rights complaint in the United 

States District Court for the Western District of Pennsylvania. Marshall brought claims 

for violations of his First and Fourteenth Amendment rights, pursuant to 42 U.S.C. § 

1983, and for violations of the Religious Land Use and Institutionalized Persons Act of 

2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc-2000cc5, based on the defendants’ alleged

unlawful interference with his practice of a form of Islam while he was incarcerated at 

the State Correctional Institution at Mahanoy (“SCI-Mahanoy”). He brought his claims 

against certain correctional officers and staff at SCI-Mahanoy as well as the Pennsylvania 

Department of Corrections (“DOC”) and certain of its employees. The case was 

 

1 Appellant filed his lawsuit under the name Kerry X, which does not match the 

name of any inmate in a state correctional institution in Pennsylvania. The District Court 

found that appellant’s inmate number matches an individual named Kerry Marshall. 

Because Kerry Marshall is the legal name of the appellant while serving his present term 

of incarceration, the District Court referred to him by this name. We will do the same.
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transferred to the United States District Court for the Middle District of Pennsylvania, 

which encompasses the location of SCI-Mahanoy, shortly after its filing. 

Following the transfer, Marshall filed a motion for a preliminary injunction, see

Fed. R. Civ. Pro. 65, in which he reiterated that the defendants’ practices burdened 

beliefs and practices of the Nation of Islam by, among other things, requiring its 

adherents to practice with others of different Islamic beliefs. In an order entered May 15, 

2012, the District Court denied Marshall’s motion for a preliminary injunction as moot, 

because he is now incarcerated at the State Correctional Institution at Rockview, and no 

longer at SCI-Mahanoy. See Abdul-Akbar v. Watson, 4 F.3d 195, 206 (3d Cir. 1993) 

(inmate’s transfer to another institution moots his claim for declaratory or injunctive 

relief). 

Marshall filed a motion for reconsideration, in which he argued that his transfer 

did not moot his claims for injunctive relief because he sought relief on a system-wide 

basis. The District Court denied the motion on the ground that because the allegations of 

the complaint were confined to events that occurred at SCI-Mahanoy, his transfer from 

that institution made his request for injunctive relief moot. The District Court also noted 

that neither of the two federal district courts that construed the claims considered them as 

a challenge to correctional policies statewide. 

Marshall appeals and moves for the appointment of counsel. Our Clerk granted 

him leave to appeal in forma pauperis and advised him that the appeal was subject to 
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possible dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary action under Third 

Circuit LAR 27.4 and I.O.P. 10.6. We have jurisdiction under 28 U.S.C. § 1292(a)(1). 

Interlocutory orders granting or denying injunctions are appealable where the order 

relates to the relief ultimately sought by the claimant. Hershey Foods Corp. v. Hershey 

Creamery Co., 945 F.2d 1272, 1277-78 (3d Cir. 1991). The standard of review over the 

District Court’s mootness determination is plenary. United States v. Gov’t of Virgin 

Islands, 363 F.3d 276, 284 (3d Cir. 2004). 

Marshall’s Rule 65 motion for injunctive relief is moot for the reasons given by 

the District Court. The federal courts may adjudicate “only actual, ongoing cases or 

controversies.” Burkey v. Marberry, 556 F.3d 142, 147 (3d Cir. 2009) (quoting Lewis v. 

Continental Bank Corp., 494 U.S. 472, 477 (1990)). This “case or controversy” 

requirement requires that a party have a personal stake in the outcome through all stages, 

trial and appellate, of the proceedings. See id. The Supreme Court has stated that “a

present, live controversy . . . must exist if we are to avoid advisory opinions on abstract 

propositions of law.” Hall v. Beals, 396 U.S. 45, 48 (1969). That personal stake and 

present, live controversy is now absent from Marshall’s case. He asked for an injunction 

that restrains SCI-Mahanoy officials from violating his civil rights, but he has now been 

transferred out from under their control. 2 Due to this change in circumstances, the 

 

2 Marshall did not claim any personal involvement by the Secretary of the DOC or 

by any other DOC officials not at SCI-Mahanoy in the alleged constitutional violations. 

See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Also, the Western 
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District Court was unable to fashion any form of meaningful relief against these 

defendants, and thus the motion for injunctive relief was moot. See Artway v. Attorney 

Gen. of N.J., 81 F.3d 1235, 1246 (3d Cir. 1996). We agree with the District Court that 

the allegations of the complaint appear to relate solely to SCI-Mahanoy rather than to a 

broader scheme in the entire statewide correctional system. 

Accordingly, because the appeal does not present a substantial question, we will 

summarily affirm. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6. Appellant’s motion for 

appointment of counsel is denied. 

 

District of Pennsylvania had previously declined to allow Marshall to proceed as the 

representative of a class of Pennsylvania prisoners. Given all this, a DOC-wide 

injunction would not have been appropriate. See Hershey Foods Corp., 945 F.2d at 1277-

78.