DLD-075                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 11-3873
                                      ____________

                                    COREY BRACEY,
                                                Appellant,
                                          v.

              PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
             SUPERINTENDENT HARLOW; DEPUTY HALL; DEPUTY
                BRYANT; MAJOR GILLMORE; MAJOR SUTTER;
                CAPTAIN WHITE, CAPTAIN FRONZ; CAPTAIN
              MORROW; LIEUTENANT CALDWELL; LIEUTENANT
                  VINCENT; LIEUTENANT DEAL; SERGEANT
              WOLFE; CORRECTION OFFICER STAFFORD; MAXINE
                  OVERTON; DR. ROMAN; MENTAL HEALTH
              MANAGEMENT; WILLIAM WOODS; JOE BROWNLEE;
                 E. BROWNLEE, GR-9693; OFFICER HARMON;
                    LIEUTENANT IRWIN; SERGEANT RUFF
                     __________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. Civ. No. 11-cv-00004)
                          District Judge: Sean J. McLaughlin
                       __________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  December 22, 2011

              Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

                              (Opinion filed January 4, 2012)
                                     ____________

                                        OPINION
                                      ____________
PER CURIAM

       Appellant Corey Bracey, then an inmate in the Restricted Housing Unit at the

State Correctional Institution at Albion (“SCI-Albion”), filed a civil rights complaint, 42
U.S.C. § 1983, in the United States District Court for the Western District of

Pennsylvania against numerous SCI-Albion correctional officers and certain of its health

care staff. Bracey alleged violations of his First, Eighth, and Fourteenth Amendment

rights in that the correctional officer defendants failed to protect him from a vicious

attack by another inmate, and the prison health care defendants denied him proper

psychiatric care.

       Shortly after filing suit, Bracey filed a motion for a preliminary injunction, Fed. R.

Civ. Pro. 65, and brief in support, in which he asserted that he suffers from depression

and psychosis, and needed more humane housing conditions and better psychiatric care.

Bracey demanded an order transferring him to another correctional facility that would be

more therapeutic. The defendants responded that Bracey’s motion for injunctive relief

was moot because he had recently been transferred to the State Correctional Institution at

Smithfield in Huntington, Pennsylvania (“SCI-Smithfield”), and was no longer

incarcerated at SCI-Albion. Therefore, there was no way to fashion any meaningful

remedy against the individual defendants. Even if the motion was not moot, it was

frivolous because his prison medical records established that Bracey received regular

psychiatric care and medications. Defendant Dr. Roman, a psychiatrist, saw Bracey on

numerous occasions, and SCI-Albion psychological or psychiatric staff treated Bracey 31

times from August 4, 2010 through May 13, 2011, prior to his transfer to SCI-Smithfield.

The only time that Bracey did not receive his medications was when he was

uncooperative with staff.

       Thereafter, the Magistrate Judge filed a Report and Recommendation,

recommending that Bracey’s motion for a preliminary injunction be denied as moot, see

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Abdul-Akbar v. Watson, 4 F.3d 195, 206 (3d Cir. 1993) (inmate’s transfer to another

institution moots his claim for declaratory or injunctive relief). Bracey filed Objections,

in which he argued that his transfer did not moot his demand for proper psychiatric care.

In an order entered on September 16, 2011, the District Court denied the motion for

injunctive relief, and adopted the Report and Recommendation as the Opinion of the

Court. The court agreed that the motion was moot, reasoning that an injunction directing

the individual defendants to do, or refrain from doing, something would be meaningless

now that Bracey is at SCI-Smithfield. The Department of Corrections itself was shielded

from suit by Eleventh Amendment immunity.

       Bracey appeals. Our Clerk granted him leave to appeal in forma pauperis and

advised him that the appeal was subject to summary dismissal under 28 U.S.C. §

1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. We

have jurisdiction under 28 U.S.C. § 1292(a)(1). Interlocutory orders granting or denying

injunctions are appealable where the order relates to the relief ultimately sought by the

claimant. Hershey Foods Corp. v. Hershey Creamery Co., 945 F.2d 1272, 1277-78 (3d

Cir. 1991). The standard of review over the District Court’s mootness determination is

plenary. United States v. Gov’t of Virgin Islands, 363 F.3d 276, 284 (3d Cir. 2004).

       We will dismiss the appeal as frivolous. An appellant may prosecute his appeal

without prepayment of the fees, 28 U.S.C. § 1915(a)(1), but the in forma pauperis statute

provides that the Court shall dismiss the appeal at any time if the Court determines that it

is frivolous, 28 U.S.C. § 1915(e)(2)(B)(i). An appeal is frivolous when it lacks an

arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).



                                             3
Bracey’s Rule 65 motion for injunctive relief is moot for the reasons given by the District

Court, and the issue is not arguable.

       The federal courts may adjudicate “only actual, ongoing cases or controversies.”

Burkey v. Marberry, 556 F.3d 142, 147 (3d Cir. 2009) (quoting Lewis v. Continental

Bank Corp., 494 U.S. 472, 477 (1990)). This “case or controversy” requirement requires

that a party have a personal stake in the outcome through all stages, trial and appellate, of

the proceedings. See id. The Supreme Court has stated that “a present, live controversy .

. . must exist if we are to avoid advisory opinions on abstract propositions of law.” Hall

v. Beals, 396 U.S. 45, 48, 90 (1969). That personal stake and present, live controversy is

now absent from Bracey’s case. He asked for an injunction that restrains SCI-Albion

officials from violating his civil rights, but he has now been transferred out from under

their control. The District Court was unable to fashion any form of meaningful relief

against these defendants, and thus the motion for injunctive relief was moot. See Artway

v. Att’y Gen. of New Jersey, 81 F.3d 1235, 1246 (3d Cir. 1996). The court also correctly

held that Bracey’s claim for injunctive relief against the Pennsylvania Department of

Corrections is barred by the Eleventh Amendment. See, e.g., Puerto Rico Aqueduct and

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); Cory v. White, 457 U.S.

85, 91 (1982).

       For the foregoing reasons, we will dismiss the appeal as frivolous pursuant to 28

U.S.C. § 1915(e)(2)(B)(i)




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