                                                           NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                   No. 09-4404
                                   ___________

                          BRIAN EDWARD GRIFFIN,
                                                           Appellant

                                         v.

                   JEFFREY BEARD; RAYMOND LAWLER;
                     C. WAKEFIELD; TIMOTHY YUTZY
                   ____________________________________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                      (D.C. Civil Action No. 08-cv-01120)
                  District Judge: Honorable Sylvia H. Rambo
                  ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                              November 16, 2010

     Before: FUENTES, GREENAWAY, JR. and NYGAARD, Circuit Judges

                        (Opinion filed November 17, 2010)

                                   ___________

                                    OPINION
                                   ___________

PER CURIAM

    Brian Edward Griffin appeals pro se from the final order of the District Court. For

                                         1
the following reasons, we will vacate in part and remand with an instruction to dismiss

Griffin‟s complaint in relevant part as moot. We will otherwise affirm.

                                             I.

       Griffin is a Pennsylvania state prisoner formerly incarcerated at the State

Correctional Institution at Huntingdon (“SCI-Huntingdon”). In 2008, he filed pro se a

civil rights complaint alleging that certain conditions at SCI-Huntingdon constituted cruel

and unusual punishment in violation of the Eighth Amendment. In particular, he alleged

inadequate ventilation in the prison cells, exposure to extreme heat and cold, rodent

infestation, and prison overcrowding, all of which he claimed increases the risk of

infectious diseases. He also alleged that he had been exposed in the outdoor prison yard

to coal smoke from a prison smokestack. He named as defendants the Secretary of the

Pennsylvania Department of Corrections, the prison Superintendent and Safety Manager,

and another corrections officer involved in the grievance process. As relief, he requested

monetary damages for a risk of future health problems, a declaratory judgment, and an

injunction requiring the defendants to correct the alleged conditions.

       The defendants filed a motion to dismiss the complaint under Rule 12(b)(6), which

the District Court denied. Discovery entailed substantial motions practice, and the

District Court granted certain of Griffin‟s discovery motions but denied others. Griffin

also filed a motion for the appointment of counsel, which the District Court denied. The

District Court also denied defendants‟ request to file a motion for summary judgment. It

                                             2
ultimately conducted a bench trial, at which Griffin called four fellow inmates as

witnesses and testified himself. At the close of Griffin‟s case, the defendants moved for

judgment on partial findings under Rule 52(c), and the District Court granted the motion

and entered judgment in their favor on October 21, 2009. Griffin appeals.1 While this

appeal was pending, Griffin was transferred from SCI-Huntingdon to another prison.

                                              II.

       Griffin challenges a number of the District Court‟s rulings and raises a number of

issues on review, but his transfer to a different prison has rendered most of them moot.

“An inmate‟s transfer from the facility complained of generally moots the equitable and

declaratory claims.” Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) (citing Abdul-

Akbar v. Watson, 4 F.3d 195, 197 (3d Cir. 1993)). Griffin argues that such claims in this

case are not moot because the conditions he complains of are capable of repetition but

evade review.

       We disagree. That limited exception to the mootness doctrine applies only when

“„(1) the challenged action was in its duration too short to be fully litigated prior to its

cessation or expiration, and (2) there is a reasonable likelihood that the same complaining

party would be subjected to the same action again.‟” Abdul-Akbar, 4 F.3d at 206

(citation omitted) (emphasis in Abdul-Akbar). Neither of these elements is present here.

       1
         Griffin also filed a motion for a new trial, which the District Court later denied,
        but he has not separately appealed from that ruling and raises no issues regarding
        that ruling in his brief.
                                               3
Griffin alleges persisting conditions that are not too short in duration to permit full

litigation. There also is no indication that he is reasonably likely to be transferred back to

SCI-Huntingdon. Griffin argues that he has been transferred there three times before, but

the record does not reveal the reasons for his current or past transfers or any reason to

suspect that he will be transferred to SCI-Huntingdon again. See Moore v. Thieret, 862

F.2d 148, 150 (7th Cir. 1989); Jerry v. Francisco, 632 F.2d 252, 255 (3d Cir. 1980).

Thus, Griffin‟s claims for injunctive and declaratory relief are moot. Accordingly, we

will vacate the District Court‟s judgment as to those claims and remand for the District

Court to dismiss them on that basis. See Rendell v. Rumsfeld, 484 F.3d 236, 243 (3d Cir.

2007) (citing United States v. Munsingwear, 340 U.S. 36, 39 (1950)).2

       Griffin‟s prison transfer, however, does not render moot his claim for monetary

damages. See Sutton, 323 F.3d at 249. We thus have jurisdiction to review the District

Court‟s judgment on that claim pursuant to 28 U.S.C. § 1291. In doing so, we review the

District Court‟s findings of fact under Rule 52(c) for clear error and its legal conclusions

de novo. See EBC, Inc. v. Clark Bldg. Sys., Inc., — F.3d —, No. 09-1182, 2010 WL

3239475, at *14 (3d Cir. Aug. 18, 2010). We review the denial of a motion for counsel

for abuse of discretion. See Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993).

       Griffin‟s claim for damages is based solely on an alleged risk of future harm as a

       2
         This disposition means that the District Court‟s rulings as to these claims would
        not have preclusive effect on any claim for prospective relief that Griffin might
       assert if he is returned to SCI-Huntingdon in the future.
                                              4
result of exposure to coal smoke in the prison yard.3 The District Court entered judgment

in favor of the defendants on this claim because, inter alia, Griffin presented no medical

or scientific evidence that he faces a risk of future harm. Griffin argues that medical

evidence was not necessary because it is common knowledge that exposure to coal smoke

is dangerous. Even if that were the case, however, the only claim surviving Griffin‟s

prison transfer is his claim for compensatory damages for a risk of future harm. That

claim required him to present evidence that he actually faces such a risk. See Atkinson v.

Taylor, 316 F.3d 257, 265 & n.6 (3d Cir. 2003) (explaining in environmental tobacco

smoke case that if the prisoner “can produce evidence of future harm, he may be able to

recover damages,” and noting record medical evidence of future harm). We agree with

the District Court that Griffin presented no such evidence here.

       Griffin further argues that he was hampered in his ability to present his case

because the District Court abused its discretion in denying his motion for counsel. We

are indeed troubled by that ruling. Although the District Court cited the Tabron factors, it

did not discuss Griffin‟s ability to gather and present scientific evidence (the lack of


       3
         Griffin argues on appeal that he is entitled also to damages for past suffering
       under all the conditions he alleges. Griffin, however, asserted no such claim in the
       District Court. In his complaint, he expressly limited his claim for monetary
       damages to his “future health risk.” (Compl. at 5 ¶ 1.) He did the same at his
       bench trial. (N.T., Oct. 21, 2009, at 66-67) (“[T]he civil suit is about future health.
       You can sue about future health. That‟s what the suit—the whole suit—read the
       complaint.”); (id. at 79) (“The injury part, the civil suit was about future
       injuries.”).

                                              5
which it later held against him), or his potential difficulties with discovery (which already

had surfaced when he moved for counsel and which proved to be protracted). See

Montgomery v. Pinchak, 294 F.3d 492, 501-05 (3d Cir. 2002). The District Court also

reasoned that “this court‟s liberal construction of pro se pleadings mitigates [sic] against

the appointment of counsel.” (Dist. Ct. Docket No. 58 at 3.) Leaving aside the fact that

the pleading stage had concluded, this reasoning suggests that all motions for counsel

(which by definition are filed by pro se litigants) inherently are “mitigated against.” That

reasoning conflicts with the framework we set forth in Tabron, and there is no support for

it in our precedent.

       Nevertheless, we cannot say that any abuse of discretion in this regard constitutes

reversible error. See 28 U.S.C. § 2111. The primary reason for appointing counsel is to

assist a litigant in litigating a potentially meritorious claim. See Tabron, 6 F.3d at 155-

56. In this case, Griffin‟s alleged risk of future harm appears purely speculative and there

is no indication that it is potentially meritorious even at this late stage.

       Neither in his complaint nor at trial did Griffin provide any meaningful detail

about his exposure to the coal smoke, such as its frequency or duration.4 Nor has he

specified how he believes such exposure will affect his health in the future. In that

regard, he did not visit a prison doctor to address his concerns, which he did not require

       4
         One of Griffin‟s witnesses testified that smoke blows into the prison yard “on a
       regular basis” (N.T. Oct. 21, 2009, at 25), but Griffin himself appears to have
       testified that it happened only twice (id. At 66).
                                                6
counsel in order to do and which might have resulted in evidence on this issue. To the

contrary, when asked at the bench trial whether he had any medical evidence to support

this claim, he answered: “I have no medical evidence and I will never have no medical

evidence because I will never deal with medical.” (N.T., Oct. 21, 2009, at 67.)

Moreover, Griffin does not argue on appeal how (or even that) counsel could have

assisted him in litigating this specific issue.5 Thus, under the circumstances, we cannot

say that the denial of counsel hampered Griffin‟s ability to present a claim that was

otherwise potentially meritorious. Consequently, we cannot conclude that any abuse of

discretion in denying counsel constitutes reversible error as to this sole remaining claim.

For the benefit of all concerned, however, we note that our ruling may have been

different if Griffin‟s claims for prospective relief had remained live on appeal.

       Accordingly, we will affirm the District Court‟s judgment as to Griffin‟s claim for

monetary damages, but vacate its judgment as to Griffin‟s other claims and remand for

the District Court to dismiss his complaint as to those claims as moot. In light of our

disposition, we need not address the parties‟ remaining arguments.




       5
        Griffin argues that counsel could have assisted him in obtaining the discovery he
       sought, and also argues the denial of his discovery motions as an independent
       ground for reversal. The discovery in question, however, relates to the existence
       and defendants‟ knowledge of the alleged conditions, not to his alleged risk of
       future injury.
                                             7
