Jonathan Henslee v. Alvin Keller, Jr. ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6707
JONATHAN LEIGH HENSLEE,
Plaintiff - Appellant,
v.
ALVIN KELLER, JR.; KEITH WHITENER,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Robert J. Conrad,
Jr., Chief District Judge. (5:11-cv-00050-RJC)
Submitted: August 29, 2012 Decided: September 11, 2012
Before MOTZ, KING, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Steven H. Goldblatt, Director, Doug Keller, Supervising
Attorney, Nilam Sanghvi, Supervising Attorney, George C. Chipev,
Student Counsel, Marion M. Read, Student Counsel, GEORGETOWN
UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Joseph
Finarelli, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jonathan Leigh Henslee, a North Carolina inmate, filed
a 42 U.S.C. § 1983 (2006) complaint, challenging the
implementation of the personal grooming policy at the Alexander
Correctional Institution. Pursuant to 28 U.S.C. § 1915A(b)(1)
(2006), the district court dismissed the action for failure to
state a claim upon which relief could be granted and noted that
its order constituted Henslee’s third “strike” for purposes of
the Prison Litigation Reform Act (“PLRA”). Henslee timely
appealed.
Initially, we addressed the impact of the district
court’s order on Henslee’s ability to proceed in forma pauperis
in this appeal. We ruled that a district court dismissal cannot
act as a strike so as to preclude an appellant from proceeding
in forma pauperis in an appeal from that order. Henslee v.
Keller, 681 F.3d 538, 543 (4th Cir. 2012). Thus, Henslee is
proceeding under the PLRA without prepayment of fees.
Turning now to the substance of Henslee’s appeal,
while his case was pending in this court, he was transferred to
another prison. Because Henslee sought only injunctive relief,
we conclude that his complaint has been rendered moot by his
transfer. Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir.
2009).
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“Where it appears upon appeal that the controversy has
become entirely moot, it is the duty of the appellate court to
set aside the decree below and to remand the cause with
directions to dismiss.” Great W. Sugar Co. v. Nelson, 442 U.S.
92, 93 (1979) (emphasis omitted; internal quotation marks
omitted). However, “vacatur on appeal is an equitable rule
warranted only where mootness has occurred through happenstance,
rather than through voluntary action of the losing party.”
Brook v. Vassar, 462 F.3d 341, 349 (4th Cir. 2006) (internal
quotation marks omitted). This “clears the path for future
relitigation of the issues between the parties and eliminates a
judgment, review of which was prevented through happenstance.”
United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950).
Because Henslee’s action became moot through
happenstance, namely his transfer to another facility, we vacate
the district court’s judgment and remand for the district court
to dismiss the complaint as moot. We emphasize that our earlier
PLRA ruling is not affected by this decision and remains
standing. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
VACATED AND REMANDED
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