NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 17-1773
                                    _____________

                    LACEY STRADFORD; WILLIAM NETTLES;
                        JESSE STROUD; WILLIAM SCOTT,
                on behalf of themselves and all others similarly situated,
                                                Appellants

                                            v.

       SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS
                         ______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                        (D.C. Civil Action No. 2-16-cv-02064)
                     Chief District Judge: Hon. Juan R. Sanchez
                                   ______________

                            Argued on September 28, 2017
                                  ______________

        Before: SMITH, Chief Judge, McKEE and RESTREPO, Circuit Judges.

                               (Filed: November 5, 2019)


Donald Driscoll [ARGUED]
Community Justice Project
100 Fifth Avenue
Suite 900
Pittsburgh, PA 15222

Alexandra Morgan-Kurtz
Pennsylvania Institutional Law Project
429 Forbes Avenue
Suite 800
Pittsburgh, PA 15219
                            Counsel for Appellants


Timothy A. Holmes
Debra S. Rand [ARGUED]
Pennsylvania Department of Corrections
Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050

                            Counsel for Appellee

                                     ______________

                                        OPINION*
                                     ______________


RESTREPO, Circuit Judge.

       Plaintiffs are challenging a Pennsylvania Department of Corrections (“DOC”)

policy regarding the timing of halfway house placement for individuals with a sex

offense classification who have been granted parole. When the Complaint was filed,

Plaintiffs claimed that the DOC policy violated their equal protection rights because it

prohibited their placement in halfway houses until two years before their maximum

sentence date, a restriction that did not apply to other prisoners. Stradford v. Wetzel, No.

16-2064, 

, at *1 (E.D. Pa. March 31, 2017). The District Court

granted Defendant’s motion to dismiss with prejudice, and without leave to amend,




       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.

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concluding that “any attempt of Plaintiffs to cure their equal protection claim would be

futile, as Defendant has a rational basis for the policy at issue.” 

       Plaintiffs appealed this Judgment. After we heard argument, the DOC changed the

policy at issue. Individuals with a sex offense classification who have been granted

parole are now eligible to live in a DOC-operated halfway house at the time of referral.

As a result, Defendant filed a motion to dismiss the appeal as moot, which Plaintiffs

opposed. We vacated the Judgment and ordered a limited remand to the District Court

with instructions to develop the factual record as necessary, to determine whether the

case is moot, and to enter an appropriate order. We retained jurisdiction over the appeal

pending the District Court’s disposition of the limited remand. See Forbes v. Twp. of

Lower Merion, 

, 151 (3d Cir. 2002).

       The District Court permitted limited discovery, briefing, and argument on the

mootness question. Plaintiffs claim that even under the new DOC policy they are still

facing delays in halfway house placement that individuals who do not have a sex offense

classification do not face. The District Court found that the change in the DOC policy

did not moot Plaintiffs’ claim based on evidence that suggested only individuals with sex

offense classifications who have been granted parole are first sent to Progress

Community Corrections Center (“CCC”) before being placed in a less secure DOC-

operated halfway house. Following the District Court’s Order, we issued an Order for

supplemental briefing to address the ruling that the case is not moot.

       We agree with the District Court’s conclusion that the matter is not moot.

However, our review on appeal is limited to the claims raised in the Complaint. Plaintiffs

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current claim is that the initial parole of sex offenders to Progress CCC (a secure CCC)

prior to release to a less secure CCC is an unconstitutional delay. This claim was not

plead, and the District Court therefore did not consider whether it has a rational basis.

See In re City of Phila. Litig., 

(3d Cir. 1998) (noting the “well established

principle that it is inappropriate for an appellate court to consider a contention raised on

appeal that was not initially presented to the district court”). Given the change in

Defendant’s policy, it is apparent that amendment of the Complaint would not be

futile. Leave to amend ordinarily should be granted where amendment would not be

futile. See, e.g., In re Burlington Coat Factory Sec. Litig., 

, 1434-35 (3d

Cir. 1997). Therefore, we remand for the District Court to grant Plaintiffs leave to amend

their Complaint to include their “Progress CCC” claim.1




1
 Nothing in this Opinion should be read to limit the District Court’s discretion as to
whether any further discovery is necessary.
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