NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

the following reasons, we will vacate in part and remand with an instruction to dismiss
Griffins complaint in relevant part as moot. We will otherwise affirm.
I.
Griffin is a Pennsylvania state prisoner formerly incarcerated at the State
Correctional Institution at Huntingdon (SCI-Huntingdon). In 2008, he filed pro se a
civil rights complaint alleging that certain conditions at SCI-Huntingdon constituted cruel
and unusual punishment in violation of the Eighth Amendment. In particular, he alleged
inadequate ventilation in the prison cells, exposure to extreme heat and cold, rodent
infestation, and prison overcrowding, all of which he claimed increases the risk of
infectious diseases. He also alleged that he had been exposed in the outdoor prison yard
to coal smoke from a prison smokestack. He named as defendants the Secretary of the
Pennsylvania Department of Corrections, the prison Superintendent and Safety Manager,
and another corrections officer involved in the grievance process. As relief, he requested
monetary damages for a risk of future health problems, a declaratory judgment, and an
injunction requiring the defendants to correct the alleged conditions.
The defendants filed a motion to dismiss the complaint under Rule 12(b)(6), which
the District Court denied. Discovery entailed substantial motions practice, and the
District Court granted certain of Griffins discovery motions but denied others. Griffin
also filed a motion for the appointment of counsel, which the District Court denied. The
District Court also denied defendants request to file a motion for summary judgment. It
2

ultimately conducted a bench trial, at which Griffin called four fellow inmates as
witnesses and testified himself. At the close of Griffins case, the defendants moved for
judgment on partial findings under Rule 52(c), and the District Court granted the motion
and entered judgment in their favor on October 21, 2009. Griffin appeals.1 While this
appeal was pending, Griffin was transferred from SCI-Huntingdon to another prison.
II.
Griffin challenges a number of the District Courts rulings and raises a number of
issues on review, but his transfer to a different prison has rendered most of them moot.
An inmates transfer from the facility complained of generally moots the equitable and
declaratory claims. Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) (citing AbdulAkbar v. Watson, 4 F.3d 195, 197 (3d Cir. 1993)). Griffin argues that such claims in this
case are not moot because the conditions he complains of are capable of repetition but
evade review.
We disagree. That limited exception to the mootness doctrine applies only when
(1) the challenged action was in its duration too short to be fully litigated prior to its
cessation or expiration, and (2) there is a reasonable likelihood that the same complaining
party would be subjected to the same action again. Abdul-Akbar, 4 F.3d at 206
(citation omitted) (emphasis in Abdul-Akbar). Neither of these elements is present here.
1

Griffin also filed a motion for a new trial, which the District Court later denied,
but he has not separately appealed from that ruling and raises no issues regarding
that ruling in his brief.
3

Griffin alleges persisting conditions that are not too short in duration to permit full
litigation. There also is no indication that he is reasonably likely to be transferred back to
SCI-Huntingdon. Griffin argues that he has been transferred there three times before, but
the record does not reveal the reasons for his current or past transfers or any reason to
suspect that he will be transferred to SCI-Huntingdon again. See Moore v. Thieret, 862
F.2d 148, 150 (7th Cir. 1989); Jerry v. Francisco, 632 F.2d 252, 255 (3d Cir. 1980).
Thus, Griffins claims for injunctive and declaratory relief are moot. Accordingly, we
will vacate the District Courts judgment as to those claims and remand for the District
Court to dismiss them on that basis. See Rendell v. Rumsfeld, 484 F.3d 236, 243 (3d Cir.
2007) (citing United States v. Munsingwear, 340 U.S. 36, 39 (1950)).2
Griffins prison transfer, however, does not render moot his claim for monetary
damages. See Sutton, 323 F.3d at 249. We thus have jurisdiction to review the District
Courts judgment on that claim pursuant to 28 U.S.C. 1291. In doing so, we review the
District Courts findings of fact under Rule 52(c) for clear error and its legal conclusions
de novo. See EBC, Inc. v. Clark Bldg. Sys., Inc., F.3d , No. 09-1182, 2010 WL
3239475, at *14 (3d Cir. Aug. 18, 2010). We review the denial of a motion for counsel
for abuse of discretion. See Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993).
Griffins claim for damages is based solely on an alleged risk of future harm as a
2

This disposition means that the District Courts rulings as to these claims would
not have preclusive effect on any claim for prospective relief that Griffin might
assert if he is returned to SCI-Huntingdon in the future.
4

result of exposure to coal smoke in the prison yard.3 The District Court entered judgment
in favor of the defendants on this claim because, inter alia, Griffin presented no medical
or scientific evidence that he faces a risk of future harm. Griffin argues that medical
evidence was not necessary because it is common knowledge that exposure to coal smoke
is dangerous. Even if that were the case, however, the only claim surviving Griffins
prison transfer is his claim for compensatory damages for a risk of future harm. That
claim required him to present evidence that he actually faces such a risk. See Atkinson v.
Taylor, 316 F.3d 257, 265 & n.6 (3d Cir. 2003) (explaining in environmental tobacco
smoke case that if the prisoner can produce evidence of future harm, he may be able to
recover damages, and noting record medical evidence of future harm). We agree with
the District Court that Griffin presented no such evidence here.
Griffin further argues that he was hampered in his ability to present his case
because the District Court abused its discretion in denying his motion for counsel. We
are indeed troubled by that ruling. Although the District Court cited the Tabron factors, it
did not discuss Griffins ability to gather and present scientific evidence (the lack of

Griffin argues on appeal that he is entitled also to damages for past suffering
under all the conditions he alleges. Griffin, however, asserted no such claim in the
District Court. In his complaint, he expressly limited his claim for monetary
damages to his future health risk. (Compl. at 5 1.) He did the same at his
bench trial. (N.T., Oct. 21, 2009, at 66-67) ([T]he civil suit is about future health.
You can sue about future health. Thats what the suitthe whole suitread the
complaint.); (id. at 79) (The injury part, the civil suit was about future
injuries.).
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which it later held against him), or his potential difficulties with discovery (which already
had surfaced when he moved for counsel and which proved to be protracted). See
Montgomery v. Pinchak, 294 F.3d 492, 501-05 (3d Cir. 2002). The District Court also
reasoned that this courts liberal construction of pro se pleadings mitigates [sic] against
the appointment of counsel. (Dist. Ct. Docket No. 58 at 3.) Leaving aside the fact that
the pleading stage had concluded, this reasoning suggests that all motions for counsel
(which by definition are filed by pro se litigants) inherently are mitigated against. That
reasoning conflicts with the framework we set forth in Tabron, and there is no support for
it in our precedent.
Nevertheless, we cannot say that any abuse of discretion in this regard constitutes
reversible error. See 28 U.S.C. 2111. The primary reason for appointing counsel is to
assist a litigant in litigating a potentially meritorious claim. See Tabron, 6 F.3d at 15556. In this case, Griffins alleged risk of future harm appears purely speculative and there
is no indication that it is potentially meritorious even at this late stage.
Neither in his complaint nor at trial did Griffin provide any meaningful detail
about his exposure to the coal smoke, such as its frequency or duration.4 Nor has he
specified how he believes such exposure will affect his health in the future. In that
regard, he did not visit a prison doctor to address his concerns, which he did not require
4

One of Griffins witnesses testified that smoke blows into the prison yard on a
regular basis (N.T. Oct. 21, 2009, at 25), but Griffin himself appears to have
testified that it happened only twice (id. At 66).
6

counsel in order to do and which might have resulted in evidence on this issue. To the
contrary, when asked at the bench trial whether he had any medical evidence to support
this claim, he answered: I have no medical evidence and I will never have no medical
evidence because I will never deal with medical. (N.T., Oct. 21, 2009, at 67.)
Moreover, Griffin does not argue on appeal how (or even that) counsel could have
assisted him in litigating this specific issue.5 Thus, under the circumstances, we cannot
say that the denial of counsel hampered Griffins ability to present a claim that was
otherwise potentially meritorious. Consequently, we cannot conclude that any abuse of
discretion in denying counsel constitutes reversible error as to this sole remaining claim.
For the benefit of all concerned, however, we note that our ruling may have been
different if Griffins claims for prospective relief had remained live on appeal.
Accordingly, we will affirm the District Courts judgment as to Griffins claim for
monetary damages, but vacate its judgment as to Griffins other claims and remand for
the District Court to dismiss his complaint as to those claims as moot. In light of our
disposition, we need not address the parties remaining arguments.

Griffin argues that counsel could have assisted him in obtaining the discovery he
sought, and also argues the denial of his discovery motions as an independent
ground for reversal. The discovery in question, however, relates to the existence
and defendants knowledge of the alleged conditions, not to his alleged risk of
future injury.
7