                                                      NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ____________

                           No. 11-1320
                          ____________

                     GARRETT WILLIAMS,

                              Appellant

                                 v.

*SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
    CATHERINE MCVEY, Chairman of the Pennsylvania Board of
         Probation and Parole, in their official capacities

             *(Pursuant to Rule 43(c), Fed. R. App. P.)
                          ____________

          On Appeal from the United States District Court
               for the Middle District of Pennsylvania
                      (D.C. No. 1-09-cv-01587)
          District Judge: Honorable Christopher C. Conner
                           ____________

          Submitted Pursuant to Third Circuit LAR 34.1(a)
                       September 19, 2011

Before: FISHER, HARDIMAN and GREENAWAY, Jr., Circuit Judges.

                     (Filed: October 7, 2011 )
                          ____________

                   OPINION OF THE COURT
                        ____________
FISHER, Circuit Judge.

          Garrett Williams appeals from an order of the District Court granting Defendants‟

motion for judgment on the pleadings as to his claim for declaratory relief and dismissing

as moot his request for injunctive relief. For the reasons stated below, we will affirm the

District Court‟s decision as to injunctive relief and vacate and remand for dismissal as to

Williams‟s claims for declaratory relief.

                                               I.

          We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

          In 2000, Garrett Williams was convicted of involuntary deviate sexual intercourse,

aggravated indecent assault, corruption of minors, and endangering the welfare of

children. He was sentenced to eight to sixteen years‟ imprisonment, to be served in the

custody of the Pennsylvania Department of Corrections (“the DOC”). On May 15, 2008,

Williams was granted conditional parole by the Pennsylvania Board of Probation and

Parole (“the Parole Board”). Among the conditions of his parole was a requirement that

he secure placement in a community correction center (“CCC”) prior to his release from

prison.

          The Parole Board has long relied on CCCs to provide halfway house services to

inmates released on parole. Often, release on parole is explicitly conditioned on

placement in such a facility. CCCs are operated primarily by private contractors under

                                               2
the supervision of the DOC, and are geographically distributed throughout Pennsylvania.

Some CCCs are operated directly by the state. Privately-owned CCCs categorically

exclude sex offenders, primarily because of opposition by local residents and restrictions

on sex offender occupancy. Although some state-operated CCCs accept sex offenders,

the number of placements available to sex offenders is limited. Similar restrictions have

not been adopted for any other category of paroled offender.

       On August 17, 2009, Williams filed a complaint pursuant to 42 U.S.C. § 1983 in

the U.S. District Court for the Middle District of Pennsylvania, alleging that the CCC

policy regarding placement of sex offenders violates his constitutional rights under the

Equal Protection Clause and Due Process Clause of the Fourteenth Amendment and his

rights under the Fair Housing Act, 42 U.S.C. §§ 3601-3619. Williams sought both

declaratory and injunctive relief. Jeffrey Beard, Secretary of the DOC,1 and Catherine

McVey, Chairwoman of the Parole Board (“Defendants”), were named as defendants.

       Defendants filed a motion for judgment on the pleadings as to each of Williams‟s

claims. On October 27, 2009, the Parole Board modified its order requiring Williams to

obtain placement in a CCC, and on December 6, 2009, released him directly to a

Philadelphia apartment he had previously secured, subject to his continued participation




       1
         On May 4, 2011, John Wetzel was confirmed as the new Secretary of the DOC,
and pursuant to Fed. R. App. P. 43(c)(2), he was automatically substituted as a party in
this case.


                                             3
in, and completion of, sex offender treatment. The condition that he first secure

placement in a CCC was removed.

       On November 1, 2010, Magistrate Judge Thomas M. Blewitt issued a report and

recommendation (“R&R”), recommending that Defendants‟ motion for judgment on the

pleadings be granted as to Williams‟s claim for declaratory relief. Judge Blewitt

recommended that Williams‟s claim for injunctive relief be dismissed as moot because he

had been released on parole and was no longer required to seek admission to a CCC.

Because Defendants did not raise the issue of whether Williams‟s declaratory relief claim

was also moot, Judge Blewitt did not address it. The District Court adopted the R&R in

its entirety. Williams subsequently filed a motion for reconsideration, which was denied.

He filed a timely notice of appeal.

                                             II.

       The District Court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331

and 1343, and we have jurisdiction pursuant to 28 U.S.C. § 1291. Because we resolve

this case solely on mootness grounds, we need not (and do not) address the District

Court‟s decision regarding the merits of Williams‟s claims. “Questions of mootness are

considered under a plenary standard of review.” International Brotherhood of

Boilermakers v. Kelly, 815 F.2d 912, 914 (3d Cir. 1987) (citations omitted). The doctrine

of mootness is rooted in Article III of the Constitution, which limits federal courts to the

adjudication of “cases” or “controversies.” Am. Bird Conservancy v. Kempthorne, 559

F.3d 184, 188 (3d Cir. 2009). “If one or more of the issues involved in an action become

                                              4
moot . . . the adjudication of the moot issue or issues should be refused.” N.J. Tpk. Auth.

v. Jersey Cent. Power & Light, 772 F.2d 25, 30 (3d Cir. 1985). When a case is rendered

moot, “[w]e will vacate the district court‟s decision and remand with directions to dismiss

the action in order to strip the decision of legal consequences.” Id. at 34 (citing United

States v. Munsingwear, Inc., 340 U.S. 36, 40-41 (1950)).

       Because mootness implicates the subject matter jurisdiction of the federal courts

under Article III, a mootness challenge is never waivable. Brown v. Phila. Hous. Auth.,

350 F.3d 338, 346-47 (3d Cir. 2003). “[N]o action of the parties can confer subject-

matter jurisdiction upon a federal court.” Ins. Corp. of Ir. v. Compagnie des Bauxites de

Guinee, 456 U.S. 694, 702 (1982). Accordingly, we must now consider not only whether

the District Court correctly determined that Williams‟s claim for injunctive relief was

moot, but also whether his claim for declaratory relief is moot.

                                            III.

       First, we address Williams‟s contention that the District Court erred in adopting

the finding of the Magistrate Judge that his request for injunctive relief was moot. “[T]he

central question of all mootness problems is whether changes in circumstances that

prevailed at the beginning of the litigation have forestalled any occasion for meaningful

relief.” Jersey Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 39 (3d Cir. 1985)

(citation omitted). Williams seeks an injunction requiring the elimination of distinctions

between sex offenders and other offenders with respect to CCC placement. However,

because he has been released and the condition that he obtain placement in a CCC has

                                             5
been waived, he no longer needs to be treated as a non-sex offender. Removal of the

distinction between sex offenders and non-sex offenders would not provide him any

meaningful relief.

       The District Court, adopting the Magistrate Judge‟s R&R, correctly found that

United States Parole Commission v. Geraghty, 445 U.S. 388 (1980), is inapposite. In

Geraghty, a prisoner in federal custody who had been denied parole brought a putative

class action challenging the federal parole release guidelines. Id. at 393. He was released

from prison while his appeal was pending. Id. at 394. The Court concluded that “an

action brought on behalf of a class does not become moot upon expiration of the named

plaintiff‟s substantive claim.” Id. at 404. The Court explained that a plaintiff who brings

a class action presents two separate issues for judicial resolution: (1) his claim on the

merits and (2) his claim that he is entitled to represent the class. Id. at 402. Thus, even if

the named plaintiff‟s claim on the merits is rendered moot, he “retains a „personal stake‟

in obtaining class certification sufficient to assure that Art. III values are not

undermined.” Id. at 404. Here, Williams did not file a class action and thus Geraghty

does not apply. The fact that the Community Justice Project receives numerous requests

for representation from other sex offenders impacted by the CCC policy is irrelevant.

Their potential claims are not at issue in this case.

       Williams‟s reliance on Jago v. Van Curen, 454 U.S. 14 (1981), is similarly

misplaced. In that case, a prisoner brought a habeas action challenging the revocation of

his parole. Id. at 16. Although he was released while his appeal was pending, he

                                               6
remained subject to the conditions imposed by his parole. Id. at 21 n.3. The Court held

that, although the prisoner had been released, the case was not moot because he could be

incarcerated again upon violation of the conditions of his parole. Id. The fact that Van

Curen involved a habeas petition – not a § 1983 action – is significant. Section 1983 is

not the proper vehicle when the claim seeks “core habeas corpus relief, i.e., where a state

prisoner requests present or future release.” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005)

(internal quotations omitted). The Court in Van Curen explained that had the defendants

not revoked the prisoner‟s parole, his release would not have been delayed and the term

of his parole would likely have expired. Van Curen, 454 U.S. at 21 n.3. Unlike the

remedies available under § 1983, “the flexible nature of habeas relief” would allow the

district court to order that the parole restrictions be terminated. See id.

       In the present case, there is no indication that, even if CCCs were required to treat

all offenders alike, Williams would have been released earlier. In fact, by bringing his

claims under § 1983, Williams necessarily undercuts any argument he might have under

Van Curen. See Wilkinson, 544 U.S. at 81. He concedes that, “[e]ven if successful . . . an

unknown condition to CCC placement, having to do with beds becoming available or

being added and the number of eligible parolees ahead of him, must be satisfied.” Thus,

unlike in Van Curen, Williams has not alleged that he would be free of parole restrictions

but for the challenged action, and accordingly he suffers no continuing injury as a result

of the CCC policy. See Van Curen, 454 U.S. at 21 n.3. An injunction would offer no

meaningful relief.

                                               7
       We next address whether Williams‟s claim for declaratory relief is also moot. A

live controversy can exist as to declaratory relief even if a request for injunctive relief is

rendered moot. Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 121-22 (1974);

Winston by Winston v. Children & Youth Servs. of Delaware County, 948 F.2d 1380,

1384 (3d Cir. 1991). This case, however, does not present such a situation. Williams

argues that because his injury is capable of repetition, yet will inevitably evade judicial

review, he retains a sufficient stake in the controversy. We disagree. “The exception

from the mootness doctrine for cases that are technically moot but „capable of repetition,

yet evading review‟ is narrow and available „only in exceptional circumstances.‟”

Rendell v. Rumsfeld, 484 F.3d 236, 241 (3d Cir. 2007) (quoting City of Los Angeles v.

Lyons, 461 U.S. 95, 109 (1983)). The exception only applies when “(1) the challenged

action [is] in its duration too short to be fully litigated prior to cessation or expiration, and

(2) there [is] a reasonable expectation that the same complaining party [will] be subject to

the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975). In this case,

Williams has not established a sufficiently reasonable expectation that he will once again

be subject to the challenged CCC policy.

       Williams could only again be subject to the policy at issue if he commits another

crime or otherwise violates his parole. Although recidivism rates may indicate that he is

more likely than others in society to engage in criminal behavior, we refuse to assume

that he will do so. As the Supreme Court made clear, he is “able – and indeed required




                                               8
by law – to prevent such a possibility from occurring.”2 Spencer v. Kemna, 523 U.S. 1,

15 (1998) (quoting Lane v. Williams, 455 U.S. 624, 633 n.13 (1982)). We must assume

that Williams will comply with the law.

       A closer question is whether the potential for a “technical” parole violation3

establishes the reasonable expectation of repetition required by the exception. Because

we find the primary case on which Williams relies distinguishable, we hold that it does

not. Williams points out that the restriction on sex offender placement in CCCs is due in

large part to community opposition. Such staunch anti-sex offender sentiment, he argues,

increases the risk of a technical violation. For example, he says that public pressure on

his employer or landlord might cause him to lose his job or housing, events which could

lead to a technical parole violation. The likelihood of this happening is so great,

Williams maintains, as to bring his case within the ambit of the “capable of repetition, yet

evading review” exception.

       Williams draws our attention to Winston by Winston v. Children and Youth

Services of Delaware County, in which we held that a conditional return of parental

custody did not moot the parents‟ challenge to the state‟s visitation policies, because


       2
         Williams argues that because he cannot avail himself of reintegration assistance
programs provided by CCCs, he is more likely to re-offend. Regardless of whether a
parolee has the benefit of such a program, he is obligated to refrain from future criminal
activity. Thus, Williams‟s argument on this point is unavailing.
       3
         A “technical violator” is a parolee who “violates the terms and conditions of his
parole, other than by the commission of a new crime.” 61 PA. CONS. STAT. § 6138(c)(1).


                                             9
circumstances indicated that the parents could once again be subject to those policies.

948 F.2d at 1384. In that case, the three-year-old son of Maryann and Samuel Winston

was taken into protective custody by the child services agency because Samuel was

arrested in connection with a drug violation and Maryann was hospitalized due to

recurrent psychiatric and substance abuse problems. Id. at 1382. The parents,

dissatisfied with the limitations placed on their visitation rights, brought a challenge to

the state‟s visitation policy under § 1983. Id. Before the case was resolved, the child was

returned to his father‟s custody. Id. We rejected the state‟s argument that the action was

moot, reasoning that “legal custody was returned to the parents only subject to conditions

which, if not complied with, could subject them to a repeat of the situation which

precipitated this lawsuit.” Id. at 1384.

       Winston is distinguishable on its facts. The possibility that Williams might be

evicted or lose his job because of public opposition to sex offenders is highly speculative,

surely far more so than the possibility that a “family unit, composed . . . of two parents

who have a history of drug use,” could experience “another breakdown requiring [the

state] to retake temporary custody of [the child].” See id. There is no evidence to

support Williams‟s claims that he might be evicted or lose his job. Assuming Williams‟s

landlord or employer is unaware of his status as a sex offender, he or she would have to

learn of his status and then bow to public pressure to fire or evict Williams. The Parole

Board would have to deem this a parole violation and revoke his parole. Even then,

Williams would not be subject to the CCC policy unless he was subsequently granted

                                              10
parole under the same conditions originally imposed in this case. Such a series of events

is speculative and does not establish a reasonable expectation that Williams will be

subject to the challenged policy again.4 Thus, we cannot conclude that this is one of

those “exceptional circumstances,” in which the “capable of repetition, yet evading

review” exception applies. See Rendell, 484 F.3d at 241.

                                            IV.

       For the foregoing reasons, we will affirm the order of the District Court finding

Williams‟s claim for injunctive relief moot, vacate the order of the District Court as to

Williams‟s claim for declaratory relief, and remand with instructions to dismiss the

declaratory relief claim on mootness grounds.




       4
          Williams argues that the CCC policy regarding sex offenders also affects his
eligibility for the Half-Way Back program, which allows parolees who commit technical
violations to occupy CCCs and receive assistance in finding a residence or employment,
rather than be re-incarcerated. The chance that Williams would commit a technical
violation, meet the qualifications for the program, and then be excluded because he is a
sex offender is similarly speculative.


                                             11
