Marc Ramirez v. Michael V. Pugh, Warden, Lsci-Allenwood

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2594
MARC RAMIREZ,
Appellant
v.
MICHAEL V. PUGH, WARDEN, LSCI-ALLENWOOD;
ATTORNEY GENERAL OF THE UNITED STATES;
DR. KATHLEEN HAWK, DIRECTOR OF THE BUREAU OF PRISONS
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 97-cv-0359
(Honorable James F. McClure, Jr.)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 3, 2008
Before: SCIRICA, Chief Judge, HARDIMAN and STAPLETON, Circuit Judges.
(Filed: April 8, 2008)
OPINION OF THE COURT
PER CURIAM.
Marc Ramirez, a former federal prisoner proceeding pro se, appeals an order of the
United States District Court for the Middle District of Pennsylvania granting summary

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In an earlier appeal in this case, we reversed the District Court’s decision dismissing1
the complaint, and remanded the case so that the parties could develop a factual record.
Ramirez v. Pugh, 379 F.3d 122 (3d Cir. 2004).
2
judgment in favor of prison officials in his civil rights action. We will dismiss this appeal
because it is moot.
Ramirez filed a complaint challenging the constitutionality of the Ensign
Amendment, codified at 28 U.S.C. § 530C(b)(6), and related prison regulations. The
Ensign Amendment prohibits the Bureau of Prisons from using federal funds to distribute
or make available to a prisoner any commercially published information or material that is
sexually explicit or features nudity. Id. Ramirez alleged that magazines sent to him in
prison were returned to the sender because they were sexually explicit or featured nudity.
Following discovery, Ramirez and the prison defendants filed cross-motions for
summary judgment. The District Court denied Ramirez’s motion and granted summary
judgment for the defendants. The District Court upheld the constitutionality of the statute
and regulations, finding that the restrictions were rationally related to the legitimate
penological interests of rehabilitation and security and met the reasonableness
requirements of Turner v. Safley, 482 U.S. 78 (1987). This appeal followed.1
We must first address the prison defendants’ motion to dismiss Ramirez’s appeal
as moot due to his release from prison while his appeal was pending. A federal court has
neither the power to render advisory opinions nor to decide questions that can not affect
the rights of litigants in the case before them. Preiser v. Newkirk, 422 U.S. 395, 401

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(1975); Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) (per curiam). An inmate’s
transfer or release from the facility complained of generally moots equitable and
declaratory claims. Sutton, 323 F.3d at 248. Such claims are not mooted when a
challenged action is (1) too short in duration to be fully litigated before its cessation or
expiration; and (2) there is a reasonable likelihood that the same complaining party would
be subject to the same action again. Id.
The record reflects that Ramirez, through counsel, withdrew his damages claim in
District Court and sought only declaratory and injunctive relief. The prison defendants
have established that Ramirez’s prison term ended on December 26, 2007, and that he
was released from custody on that date. There is no indication that he is reasonably likely
to be in the Bureau of Prisons’ custody again. Because a ruling by this Court on the
constitutionality of the Ensign Amendment will have no effect on Ramirez, his claims are
no longer justiciable. See Preiser, 422 U.S. at 402 (holding case was moot where a
prisoner who challenged the constitutionality of his transfer to a maximum security
facility was transferred back to a minimum security facility); Sutton, 323 F.3d at 249
(holding equitable and declaratory claims were moot where prisoners who challenged a
policy on access to religious materials were no longer confined at the facility).
Accordingly, we will grant the prison defendants’ motion to dismiss this appeal as
moot.

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