                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 12, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 ERIC ROLAND BURKE,

               Plaintiff - Appellant,

          v.                                            No. 12-3033
                                                          (D. Kan.)
 CORRECTIONS CORPORATION OF                    (D.C. No. 5:09-CV-03068-SAC)
 AMERICA; SHELTON
 RICHARDSON, Warden; ROBERT
 MUNDT, Assistant Warden;
 KENNETH DAUGHERTY, Chief of
 Unit Management; BRUCE
 ROBERTS, Chief of Security; ROGER
 MOORE, Unit Manager,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.



      After examining the appellant’s brief and the appellate record, this panel

has determined unanimously that oral argument would not materially assist in the




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      While a pretrial detainee at a Corrections Corporation of America (“CCA”)

facility in Leavenworth, Kansas, Eric. R. Burke filed the instant civil rights suit

against CCA and several CCA employees. Burke’s complaint flowed from his

removal from the general prison population pursuant to the terms of the Prison

Rape Elimination Act, 42 U.S.C. § 15601, et seq. After Burke informed the

district court of his transfer out of the CCA facility, 1 the district court ordered

Burke to show cause why his complaint should not be dismissed as moot. See

Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010) (holding that a

prisoner’s transfer from one prison to another moots claims for declaratory and

injunctive declaratory relief against officials at the prior prison). In response,

Burke alleged only the following singular basis for concluding his case continued

to present a live case or controversy: the possibility he might at some point in the

future be housed in another CCA facility. The district court concluded this mere

possibility was insufficient to render Burke’s complaint justiciable. McAlpine v.

Thompson, 187 F.3d 1213, 1217 (10th Cir. 1999) (holding that “the hypothetical

possibility that [the plaintiff] . . . [will] be returned to the same prison and same


      1
        Burke ultimately pleaded guilty to possessing child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B), and being a felon in possession of
firearms, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). United States v.
Burke, 633 F.3d 984, 986 (10th Cir. 2011).

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conditions of confinement cannot save an otherwise moot claim for prospective

injunctive relief relating to prison conditions.”).

      This court reviews de novo a district court dismissal for constitutional

mootness. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096,

1122 (10th Cir. 2010). Upon de novo review, this court concludes Burke’s

complaint is moot for exactly those reasons identified by the district court. Thus,

exercising jurisdiction pursuant to 28 U.S.C. § 1291, the judgment of the district

court is hereby AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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