2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-7-2010

Richard Olivares v. Donna Zickefoose

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3505

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Recommended Citation

"Richard Olivares v. Donna Zickefoose" (2010). 2010 Decisions. Paper 140.

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CLD-044 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3505

___________

RICHARD STEVEN OLIVARES,

 Appellant

v.

D. ZICKEFOOSE, WARDEN

____________________________________

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 09-cv-06442)

District Judge: Honorable Noel L. Hillman

____________________________________

Submitted for Possible Summary Action

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

November 18, 2020

Before: RENDELL, FUENTES and SMITH, Circuit Judges

(Opinion filed: December 7, 2010)

_________

OPINION OF THE COURT

_________

PER CURIAM.

In December 2009, Richard Steven Olivares, an inmate serving a federal sentence 

at FCI-Fort Dix in New Jersey, filed this habeas corpus proceeding under 28 U.S.C. § 

2241 to challenge his Unit Team‟s recommendation that he spend the final 150-180 days 
2

of his incarceration at a Residential Re-entry Center (“RRC”). According to Olivares, the 

Bureau of Prisons (“BOP”) erred in various ways by failing to recommend him for the

maximum twelve-month RRC placement. As relief, Olivares asked the District Court to 

order his placement in an RRC “no later than January 16, 2010.”

1

 Respondent filed an 

answer arguing that relief should be denied because the BOP did not abuse its discretion 

in reaching its individualized determination regarding Olivares‟s RRC placement.

While the habeas petition was pending, Olivares was transferred to an RRC in 

Florida on July 21, 2010. Respondent filed notice of the transfer and argued that the 

habeas petition should be dismissed as moot. The District Court agreed that there was no 

longer a live case or controversy, and it dismissed for mootness. Olivares appeals.

We have appellate jurisdiction under 28 U.S.C. § 1291. Our review is plenary 

over a mootness determination. Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009). 

We discern no error in the dismissal for mootness. 

“Article III [of the Constitution] extends the Judicial Power of the United States 

only to „cases‟ and „controversies.‟” Unalachtigo Band of Nanticoke Lenni Lenape 

Nation v. Corzine, 606 F.3d 126, 129 (3d Cir. 2010). “Article III requires that a 

plaintiff‟s claim be live not just when he first brings the suit but throughout the entire 

litigation, and once the controversy ceases to exist the court must dismiss the case for 

lack of jurisdiction.” Lusardi v. Xerox Corp., 975 F.2d 964, 974 (3d Cir. 1992). Olivares 

 

1 Olivares has a projected release date of January 16, 2011.
3

“must demonstrate that he has suffered or is threatened with an actual injury ... that can 

be redressed by a favorable decision here.” Okereke v. United States, 307 F.3d 117, 121 

(3d Cir. 2002).

Olivares sought habeas relief to overturn the BOP‟s pre-release custody 

determination and to compel an earlier RRC placement than that recommended by his

Unit Team. We agree with the District Court that Olivares‟s transfer to an RRC rendered 

his habeas petition moot. See Demis v. Sniezek, 558 F.3d 508, 513 (6th Cir. 2009). Even 

if the District Court were to render a decision in Olivares‟s favor regarding RRC 

placement, it could provide no redress for any injury that Olivares may have suffered

from the BOP‟s action. Further, Olivares has not asserted any “collateral consequences”

to overcome the mootness of his petition. Cf. id. at 516 (“Because Demis can point to no 

„collateral consequences‟ that are the result of his delayed placement in [an RRC], and 

certainly none ... which this Court could remedy in the habeas context, Demis‟ reliance 

on the „collateral consequences‟ exception to mootness is unavailing.”). 

In sum, because this appeal presents “no substantial question,” 3d Cir. I.O.P. 10.6, 

we will summarily affirm the District Court‟s judgment.

2

 

2 Appellee‟s pending motion for summary affirmance is denied as unnecessary.