                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-3522
                                   ___________

Duane Joseph Smith,                 *
                                    *
             Appellee,              *
                                    *
      v.                            * Appeal from the United States
                                    * District Court for the Southern
Thomas E. Hundley; Paul Hedgepeth;  * District of Iowa.
James G. Helling; Vande Krol,       *
as Chaplain,                        *
                                    *
             Appellants.            *
                               ___________

                             Submitted: May 12, 1999

                                  Filed: September 3, 1999
                                   ___________

Before BEAM, FLOYD R. GIBSON, and MURPHY, Circuit Judges.
                           ___________


BEAM, Circuit Judge.

       Inmate Duane Joseph Smith brought this 42 U.S.C. § 1983 action against prison
officials1 at the Iowa State Penitentiary (defendants) and the Iowa State Penitentiary


      1
       Thomas Hundley died before time of trial. The district court opinion noted that
Hedgepeth was being substituted for him in his official capacity under Federal Rule of
Civil Procedure 25, as well as being named in his individual capacity as Deputy
(ISP)2 seeking injunctive and declaratory relief on the grounds that defendants violated
his First Amendment rights by denying him items for the practice of his Seax-Wicca
faith. Following a trial before a magistrate judge,3 Smith's claim for injunctive relief
was denied on the ground that Smith was no longer incarcerated at ISP. However, the
magistrate judge granted declaratory relief. On appeal, defendants assert that Smith's
transfer mooted his case, including his request for declaratory relief, or in the
alternative, their actions did not violate Smith's First Amendment rights. We agree that
Smith's case is moot and vacate the judgment.

I.     BACKGROUND

       While confined at ISP, a maximum security prison, Smith made several requests
to purchase items that he claims were necessary for the practice of his Seax-Wicca




Warden.
       2
        In its initial review orders, the district court dismissed Smith's claim against ISP
on the grounds that the Eleventh Amendment shielded ISP, an agency of the State of
Iowa, from suit in federal court. With regard to the individual defendants, we note that
although it is not entirely clear whether they are being sued in their individual or official
capacities or both, the section 1983 action would be viable in any event because only
injunctive and declaratory relief is sought. See Rose v. Nebraska, 748 F.2d 1258, 1262
(8th Cir. 1984) (suits for declaratory and injunctive relief against state officials in
official capacities are not barred by the Eleventh Amendment).
       3
       Pursuant to 28 U.S.C. § 636(c), the parties consented to try the matter before
a United States Magistrate Judge.

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faith.4 Defendants denied his requests.5 Smith then filed this section 1983 action
seeking injunctive and declaratory relief. A few weeks prior to trial, Smith was
transferred from ISP to Anamosa State Penitentiary in Anamosa, Iowa (ASP).

       At trial, defendants testified that Smith's requests were denied because the items
were not on ISP's personal property list of items allowed for in-cell possession.
Furthermore, defendants asserted that there were legitimate security, safety, and health
concerns for denying the in-cell use of all these items. Defendants also argued that
Smith's transfer from ISP to ASP mooted his claims for relief. Smith testified that
prison officials had refused to grant his requests for the items, but that inmates of other
religious denominations had been allowed to use similar items in the prison chapel.6

        The magistrate judge's opinion noted that under Turner v. Safley, 482 U.S. 78,
89 (1987), a prison regulation that burdens an inmate's constitutional rights is
nevertheless valid if the regulation is reasonably related to legitimate penological
interests. The magistrate judge then concluded that because the evidence showed that
Smith never requested possession of the items solely in his cell, defendants' denial of
the items based only on concerns regarding in-cell possession did not satisfy the Turner
standard, especially when other inmates had access to similar items in the prison


      4
       Wicca, a form of witchcraft, is centered around nature-oriented practices
derived from pre-Christian religions. See Random House Webster's Unabridged
Dictionary 2172 (2d ed. 1997). Smith is a practitioner of the Seax (or Saxon) sect of
Wicca.
      5
       The items requested by Smith included: a ritual robe, rune set, tarot cards, altar
cloth, pentacle, silk cords, censer and incense, candles and candle holder, herbs and
oils, wooden wand, brass bowl and cup, god and goddess statues, and a small bell.
      6
        Use of items in the chapel is supervised by chaplains, consultants, or
correctional officers. The items are inventoried and stored in a locked box and taken
out only for use in religious services.

                                           -3-
chapel. The magistrate judge also found that Smith's case was not moot because it was
"capable-of-repetition-yet-evading-review." Specifically, the magistrate judge noted
that Smith had previously been transferred from ASP to ISP in 1991, that he had a
history of disciplinary problems, and that twenty years remained of his sentence. The
magistrate judge then concluded that based on the record: "Smith faces a reasonable
prospect of being transferred back to ISP sometime during the next 20 years due to
disciplinary problems, or for protection from other inmates." Because Smith had been
transferred from ISP, the magistrate judge found that prospective injunctive relief
would not be appropriate. However, she granted declaratory judgment that Smith's
First Amendment rights had been violated.

II.   DISCUSSION

       On appeal, defendants renew their argument that Smith's transfer mooted his case
and therefore declaratory relief is inappropriate.7 Alternatively, they assert that they
did not violate Smith's First Amendment rights because: (1) Smith has failed to present
evidence that the requested items were necessary for the practice of his religion; and
(2) their actions were based on prison regulations that are reasonably related to
penological interests regarding the in-cell use of items. Smith argues that the case is
not moot. He further argues that his requests were not limited to in-cell possession, and
that defendants should have allowed him use of the requested items in the prison chapel


      7
        Defendants argue that declaratory relief is also inappropriate because Smith
never specifically requested it in his complaint, only injunctive relief. We find that
even if some ambiguity can be found in the complaint, its request for "such other and
further relief as the Court may deem just and proper" coupled with the fact that it is a
pro se complaint permits us, under a liberal construction of the pleadings, to
preliminarily consider the issue. See Miles v. Ertl Co., 722 F.2d 434, 434 (8th Cir.
1983) (pro se pleadings must be liberally construed); see also Fed. R. Civ. P. 8(f) ("all
pleadings shall be so construed as to do substantial justice").


                                          -4-
when other inmates were allowed similar items for chapel use. Defendants counter that
they were unaware that Smith wanted these items anywhere but in his cell.

       Before we reach the substantive merits of Smith's First Amendment claim, we
must first address defendants' contention that the magistrate judge erred in issuing
declaratory relief because Smith's case was moot. See Church of Scientology v. United
States, 506 U.S. 9, 12 (1992) (a federal court has no authority to give opinions upon
moot questions).

       We agree that Smith's transfer from ISP to ASP a few weeks prior to his trial
rendered his case moot. We held in Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.
1985), that an inmate's claims for declaratory and injunctive relief to improve prison
conditions were moot when he was transferred to another facility and was no longer
subject to those conditions. See also Hickman v. Missouri, 144 F.3d 1141, 1142 (8th
Cir. 1998) (same). Similarly, Smith was transferred to ASP, and he is no longer subject
to the alleged unlawful policies or conduct of ISP officials. Therefore, we find Smith's
claims for relief to be moot. Cf. Preiser v. Newkirk, 422 U.S. 395, 402 (1975) (the
question for determining whether a request for declaratory relief has become moot is
whether the facts alleged show a substantial controversy "of sufficient immediacy and
reality to warrant the issuance of a declaratory judgment").

       We do not agree with Smith's assertion that because he is likely to be subject to
the same conditions at ISP again, his case falls within the
"capable-of-repetition-yet-evading-review" exception to the mootness doctrine. This
exception applies where the following two circumstances are simultaneously present:
(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. See Hickman, 144 F.3d at
1142-43. Furthermore, the doctrine applies only in exceptional situations. See City of
Los Angeles v. Lyons, 461 U.S. 95, 109 (1983); Hickman, 144 F.3d at 1142. In his

                                          -5-
brief, Smith asserts that he has been transferred from ASP to ISP before, and, being
subject to the whims of the Iowa Department of Corrections, "can return to the Iowa
State Penitentiary at any time." We find Smith's theory of retransfer to ISP to be too
speculative a basis for declaratory relief. There is no indication in the record that Smith
is likely to be sent back to ISP. In fact, at argument, it was stated that Smith has now
been transferred from ASP, a medium/maximum security prison, to a medium security
prison in Newton, Iowa. Nor, do we do think that the mere possibility of transfer to
another prison within the Iowa correctional system, of which ISP is one, is sufficient
to bring Smith's claim within the narrow exception to the mootness doctrine. See
Preiser, 422 U.S. at 402-03 (allegations of a likely transfer may not be based on mere
speculation); Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996) (same). And while
this court might entertain jurisdiction over Smith's claim if there was evidence of efforts
on the part of defendants to evade the jurisdiction of the court by transferring prisoners,
the record provides no support of such subterfuge in this instance.

      Because we find that Smith's transfer moots his section 1983 suit against
defendants, we do not reach the merits of Smith's First Amendment claim.

III.   CONCLUSION

       Accordingly, we vacate the judgment of the district court and remand with
directions to dismiss the case as moot.

       A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                           -6-
