CLD-127                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                  No. 13-3834
                                 ____________

                                DAMON JONES,
                                            Appellant

                                        v.

             SECRETARY PENNSYLVANIA DEPARTMENT OF
            CORRECTIONS; SUPERINTENDENT GRATERFORD
          SCI; JAY LANE, DEPUTY SUPERINTENDENT; BOLTON,
               UNIT MANAGER; KELLY, UNIT COUNSELOR;
           FRANCIS J. FEILD, MAJOR; ROBIN M. LEWIS; JOHN
          DOE; JANE DOE; DISTRICT ATTORNEY PHILADELPHIA
                   __________________________________

                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                          (D.C. Civ. No. 12-cv-03365)
                   District Judge: Honorable Joel H. Slomsky
                   __________________________________

      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 12, 2013

          Before: FUENTES, JORDAN and SHWARTZ, Circuit Judges

                       (Opinion filed: December 17, 2013)
                                 ____________

                                   OPINION
                                 ____________
PER CURIAM

       Appellant Damon Jones appeals from an order of the District Court dismissing his

amended complaint. For the reasons that follow, we will dismiss the appeal in part as

moot and, in all other respects, dismiss it as frivolous.

       Jones, a state prisoner, was convicted in the Philadelphia County Court of

Common Pleas of two counts of first-degree murder in May, 1983. In 1987, he was

sentenced to death on both counts. On direct appeal, the Pennsylvania Supreme Court

affirmed both the verdict and sentence, see Commw. v. Jones, 

(Pa. 1992).

As a result of the death sentences, Jones was moved to the state correctional institution’s

Capital Case Unit (“CCU”), and thereafter was confined as a capital-case inmate within

the Restricted Housing Unit. After filing a state post-conviction petition, Jones was

granted a new penalty hearing on August 3, 2007. On December 14, 2012, the state trial

court resentenced Jones to two terms of life in prison, the sentences to run consecutive to

another life sentence Jones was serving on a separate first-degree murder conviction. At

the resentencing, the trial judge ordered that Jones be removed from death row. Jones

was transferred into the general population on or about January 17, 2013.

       Prior to his transfer off death row, in June, 2012, Jones filed the instant in forma

pauperis civil rights action, 42 U.S.C. §§ 1983 and 1985(3), in the United States District

Court for the Eastern District of Pennsylvania, against the District of Attorney of

Philadelphia and numerous state Department of Correction (“DOC”) officials. Jones

alleged that the District Attorney delayed his resentencing by seeking continuances in

state court, and he alleged that he should have been moved out of the CCU while he

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awaited resentencing. Jones alleged constitutional violations relating to the conditions of

his confinement on death row, which included a lack of fresh air and exercise, a

windowless cell, no opportunity to associate with other inmates, inadequate privacy when

he communicated with his attorney, and excessive noise and bad food, among other

things. He alleged in particular that solitary confinement violates civilized standards of

decency, and that the defendants conspired to continue his unlawful detention in solitary

confinement by unlawfully delaying his resentencing. Jones noted that he had

unsuccessfully grieved this issue through the prison grievance system in the summer of

2010. Jones sought money damages for the alleged civil rights violations and a transfer

into the general prison population.

       After Jones amended his complaint, the defendants moved in early 2013 to dismiss

it on several grounds, including that Jones’ request for injunctive relief was now moot.

In the main, the defendants took the position that the complaint was moot, and that, prior

to his resentencing, DOC policy required that Jones not be transferred into the general

population because in his case the punishment of death could potentially be reimposed at

his new penalty hearing. In an order entered on August 30, 2013, the District Court

granted the motions to dismiss and dismissed the amended complaint.

       Jones appeals. We have jurisdiction under 28 U.S.C. § 1291. 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. He was invited to submit argument in writing, and he has



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done so. We have considered his submission, and will address the arguments raised

therein.

       We will dismiss the appeal in part as moot and in part as frivolous. One purpose,

and likely the primary purpose, of Jones’ civil rights action, was to hasten his

resentencing; he undoubtedly hoped that he would receive a life sentence and be

transferred off death row. Within six months of initiating litigation against the

defendants, Jones achieved this goal and was transferred into the general population.

This is the relief that he requested and thus the appeal is moot to the extent of his request

for injunctive relief. The federal courts may adjudicate “only actual, ongoing cases or

controversies.” Burkey v. Marberry, 

, 147 (3d Cir. 2009) (quoting Lewis v.

Continental Bank Corp., 

, 477 (1990)). This “case or controversy”

requirement continues at the appellate stage and requires that a party like Jones have a

personal stake in the outcome. See 

stake in resentencing and transfer

off death row is now absent from his case. We are, in this regard, unable to fashion any

form of meaningful relief and thus the appeal is moot in part. See Artway v. Att’y Gen.

of New Jersey, 

, 1246 (3d Cir. 1996).

       To the extent that Jones sought money damages for constitutional violations

resulting from his confinement on death row prior to his resentencing, we will dismiss the

appeal as lacking an arguable basis in fact or law, 28 U.S.C. § 1925(e)(2)(B)(i). With

respect to the alleged delay in resentencing, the District Court reviewed the state court

docket and determined that the delay was caused by Jones’ counsel and not the District

Attorney. Defense counsel asked for several continuances in order to prepare for

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resentencing, according to the state court criminal docket. See PBGC v. White Consol.

Indus., Inc., 

, 1196-97 (3d Cir. 1993) (court may consider admittedly

authentic public document in ruling on motion to dismiss where plaintiff’s claim relies on

that document). Defense counsel sought continuances, according to the docket, to

conduct further investigation and to prepare motions in order to bar re-imposition of the

death penalty. On June 11, 2012, Jones filed (in state court) his own motion to be

removed from death row, but at no time prior to that date did he file any motions pro se

or seek to have defense counsel removed or replaced. The Due Process Clause

guarantees a reasonably speedy appeal. Burkett v. Cunningham, 

, 1221 (3d

Cir. 1987). The delay in resentencing Jones was almost 4 years, but he does not dispute

that his case remained a capital one, and he did not allege that his counsel’s stated need to

prepare for resentencing in order to avoid another death sentence was illegitimate. With

respect to the issue of prejudice, see 

that Jones’ convictions for first-degree

murder were not vacated, and there was no chance that he would be released outright

from prison because in Pennsylvania the sentence for first degree murder is either death

or life in prison with no possibility of parole, see 18 Pa. Cons. Stat. Ann. § 1102(a); 61

Pa. Cons. Stat. Ann. § 6137(a)(1). Accordingly, we agree with the District Court that

Jones failed to state a plausible constitutional claim relating to the delay in resentencing,

and that his amended complaint should be dismissed with respect to the District Attorney.

See Fed. R. Civ. Pro. 12(b)(6). See also Ashcroft v. Iqbal, 

, 679 (2009)

(plausibility determination is a “context-specific task that requires the reviewing court to

draw on its judicial experience and common sense”).

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       To the extent that Jones alleged that the District Attorney and the DOC defendants

conspired together to violate his constitutional rights by keeping him on death row until

he was resentenced to two life terms, Jones failed to assert facts from which a

conspiratorial agreement could be inferred. D.R. by L.R. v. Middle Bucks Area

Vocational Tech. Sch., 

, 1377 (3d Cir. 1992). Jones’ amended complaint

was properly dismissed to the extent that his conspiracy allegations failed to state a

plausible claim for relief. See Fed. R. Civ. Pro. 12(b)(6); 

.

       With respect to his continued confinement on death row, Jones alleged that the

punishment was excessive in violation of the Eighth Amendment. He does not dispute

that state law requires death-sentenced inmates to be housed in solitary confinement, see

61 Pa. Cons. Stat. Ann. § 4303, or that he was a death-sentenced inmate until August,

2007. Moreover, pursuant to DOC policy, inmates like Jones who are awaiting

resentencing but who could potentially be resentenced to death must remain on the CCU.

The response from prison officials that Jones received to his grievances indicated that,

because he was awaiting resentencing where the punishment of death could potentially be

reimposed, he was not eligible to be transferred into the general population. Jones

challenges the constitutionality of this DOC policy.

       In rejecting Jones’ argument that the DOC policy is unconstitutional under the

Eighth Amendment, the District Court reviewed section 4303, and noted that the

Pennsylvania General Assembly vests authority with the DOC to determine how and

where to hold inmates, citing 37 Pa. Admin. Code § 93.11(a) (“An inmate does not have

a right to be housed in a particular facility or in a particular area within a facility.”).

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Noting that Jones’ sentence was not modified until he was resentenced to two life terms,

the District Court concluded that there was no constitutional violation in his case because

the DOC policy as applied to him was consistent with current contemporary standards as

embodied in Pennsylvania legislation, and grounded in well-reasoned policy.

       Jones argues that solitary confinement in particular has caused him emotional

distress, but “freedom of association is among the rights least compatible with

incarceration,” Overton v. Bazzetta, 

, 131 (2003). The restrictions in the

CCU undoubtedly make a death-row inmate’s confinement more difficult to bear, but the

conditions Jones described are not a dramatic departure from accepted standards for

conditions of confinement for inmates sentenced to death. Cf. Sandin v. Conner, 

, 485 (1995). The conditions of that unit are similar to those of administrative or

disciplinary custody.1 In short, Jones failed to allege inhumane prison conditions, that he

was deprived of basic necessities, or that the defendants acted with deliberate

indifference in failing to protect his health or safety. See, e.g., Farmer v. Brennan, 

, 836 (1994); Wilson v. Seiter, 

, 298 (1991); Rhodes v. Chapman,

, 349 (1981). For this reason, and in view of the fact that Jones could have

been resentenced to death, we agree with the District Court that keeping him in the CCU

until he was resentenced did not amount to excessive punishment in violation of the

Eighth Amendment. It necessarily follows that, because the DOC defendants who




1
 We note that the Commonwealth Court has rejected an argument similar to Jones’ in
Clark v. Beard, 

(Pa. Commw. Ct. 2007).
                                             7
applied the policy to Jones did not violate any clearly established constitutional right of

his. He is not entitled to any relief.

       For the foregoing reasons, we will dismiss the appeal in part as moot and in part as

lacking an arguable basis in fact or law, 28 U.S.C. § 1915(e)(2)(B)(i).




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