CURTIS v. WETZEL

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM CURTIS, :

Plaintiff, : CIVIL ACTION

: No. 14-786

v. :

JOHN WETZEL, et al., :

Defendants. :

MEMORANDUM

Schiller, J. June 12, 2023

William Curtis was convicted of murder and is serving a life sentence without possibility

of parole. He is currently housed at SCI Coal Township. His Complaint alleges Defendants,

fourteen Pennsylvania Department of Corrections (“DOC”) employees and officials, retaliated

against him in violation of his constitutional rights and various state laws in 2012 while he was an

inmate at SCI Graterford by placing him in the Restricted Housing Unit for his refusal to sign a

form required to receive sex offender treatment. He seeks monetary damages and equitable relief

in the form of release into the general population and the removal of any references to him as a

sex offender in DOC records.

After remand from the Third Circuit!, Defendants move for summary judgment with

respect to Curtis’ individual capacity claims against former Secretary of Corrections John Wetzel

and former Deputy Secretary Michael Klopotoski. (ECF 194.) Defendants also seek to dismiss

Curtis’ official capacity claims against the Secretary of Corrections and the Deputy Secretary of

This matter was remanded after the retirement of Chief Judge Lawrence F. Stengel, to

whom it was originally assigned. It was reassigned to the Court’s docket in April 2019. (ECF

135.)

the Eastern Region as moot or, in the alternative, seek summary judgment in their favor.” (/d.) In

addition, Defendants Jessica Birmingham, Thomas Bolton, Andrea Brannen, Gerald Kelly, Jay

Lane, Gary Olinger, and Frank Regan move to dismiss as moot all of Curtis’ official capacity

claims against them.’ (/d.) For the following reasons, the Court grants Defendants’ motion.

BACKGROUND

A. Facts

1. Curtis was placed in restricted housing.

Since his murder conviction in 1982, Curtis has been housed at several different

Pennsylvania correctional facilities. (Def.’s Ex. 2B, ECF 99-2 at 6-11; see also Curtis Dep., Defs.’

Ex. 1, ECF 99-1 at 7:19-8:10.) At all times relevant to his claims in this action, Curtis was confined

at SCI Graterford. (Compl., ECF 1, § 18.)

Curtis was placed on the DOC’s Restricted Release List and placed in Administrative

Custody in March or April 2007. (Gerard Kelly Decl., Defs.’ Ex. 4, ECF 99-4 at 3-4.) That year,

2 When Curtis initiated this lawsuit in 2014, John Wetzel was the Secretary of Corrections

and Michael Klopotoski was Deputy Secretary of Corrections for the Eastern Region. Both have

since retired. When Defendants filed their now-pending Motion to Dismiss and for Summary

Judgment (ECF 194), George Little was the Acting Deputy Secretary of Corrections. Dr. Laurel

R. Harry is now the DOC’s Acting Secretary. She is automatically substituted as the relevant

defendant for purposes of Curtis’ official capacity claims against the Secretary of Corrections

under Federal Rule of Civil Procedure 25(d). Current Deputy Secretary of the Eastern Region

Tammy Ferguson is automatically substituted as the relevant defendant for purposes of Curtis’

official capacity claims against the Deputy Secretary pursuant to Rule 25(d).

3 The Court liberally construes Plaintiff's Motion for Summary Judgment (ECF 210), as

Curtis’ Response to the Commonwealth Defendants’ Motion to Dismiss and Motion for Summary

Judgment (ECF 194). Curtis filed his “Motion” on September 14, 2022, after the Court directed

him to respond to Defendant’s motion by September 12, 2022. (See ECF 206.) And although

Curtis’ filing is styled as a motion seeking affirmative relief, it opposes Defendants’ arguments,

rather than presenting the Court with new ones. The Court also considers the exhibits attached to

ECF 105, 111, 192, 193, 199, 200, 201, 207, and 211 as exhibits to his response. (See ECF 196,

202, 206.)

he was also sanctioned for two misconduct reports: (1) Report No. A514342 for “engaging in

sexual acts with others or sodomy” and presence in an unauthorized area, and (2) Report No.

A514344 for assault and presence in an unauthorized area. (Def.’s Exs. 6B and 6C, ECF 143-5.)

With respect to the first, a hearing examiner determined four confidential informants were

“established as reliable” and “more credible” than Curtis (ECF 143-5 at ECF p. 4), notwithstanding

Curtis’ categorical denial of “any/and all of the horrendous acts stated on th[e] misconduct.” (/d.

at ECF p. 8.) Curtis was sanctioned with 360 days of disciplinary custody for the first report and

to 180 days of disciplinary custody for the second. Ud at ECF p. 5, 12.) A January 2011

Commonwealth of Pennsylvania “Initial Classification Summary” reported Curtis had been placed

on the Restricted Release List due to his history of “exerting a negative influence in facility

activities by repeatedly threatening staff members, refusing orders” and “sexually predatory

behavior.” (Defs.’ Ex. 4, ECF 99-2 at ECF p. 14.) Curtis remained in Administrative Custody on

the Restricted Release List in the Restricted Housing Unit (Level 5) until February 2012. (Defs.’

Ex. 1, ECF 99-1 at 13:14-18; Defs.’ Ex. 4, ECF 99-4, at ¥ 12.)

2. Curtis was removed from restricted housing to receive Sex Offender

Programming.

Efforts began to remove Curtis from the Restricted Release List in December 2011 after

he was assigned to Corrections Counselor Gerard Kelly’s caseload. (Gerard Kelly Decl., Defs.’

Ex. 4, ECF 99-4, at 9] 6, 9.) Kelly reviewed Curtis’ file and saw Curtis “had a conviction for a sex

crime” and had received a misconduct for sexually assaulting inmates. (/d. § 7.) Kelly concluded

Curtis required “treatment for his sexual behavior in prison and his assaultive nature.” (/d.)

Treatment would only have been available to Curtis in the “general population prison at

4 Regrettably, the information Curtis’ file contained about this “conviction” was later

determined to be erroneous.

Graterford,” necessitating his removal from the Restricted Release List and release from the

Restricted Housing Unit. Ud 48.) Kelly received approval for Curtis’ return to the general

population by the end of December. (/d. § 10.) However, Curtis’ general population placement

was conditioned on his participation in Sex Offender Programming and “contingent on [Curtis’]

“acceptance” of Sex Offender Programming. (/d. § 11; Defs.’ Ex. 4A, ECF 99-4 at ECF p. 7.)

When DOC staff voted to approve Curtis’ removal from the Restricted Release List, they did so

based on the recommendation that he “be placed on the Institutional Predator list” and “remain in

closer supervision [sic] in order to adjust appropriately and not present a danger to inmates for the

remainder of his incarceration ... .” (Defs.’ Ex. 4A, ECF 99-4 at ECF p. 7.) In conjunction with

their decision, voting staff noted Curtis would “need[ ] to comply with [sex offender] evaluation

and recommendations,” could “not refuse treatment” and “must be placed on tracking,” and

explained “any violation w[ould] result in return to [Restricted Housing Unit].” Ud. at ECF p. 8.)

3. Curtis was removed from and then returned to restricted housing.

Curtis was removed from the Restricted Release List in February 2012, signed a “tracking

agreement,” and transferred to the general population. (Gerard Kelly Decl., Defs.’ Ex. 4, ECF 99-

4, 912; Curtis Dep., Defs.? Ex. 1, ECF 99-1 at 14:16-15:20.) DOC Psychological Services

Specialist Andrea Brannen then evaluated and interviewed him for Sex Offender Programming

placement. (Andrea Brannen Decl., Defs.’ Ex. 2, ECF 99-2, at 43.) To prepare for his evaluation,

she reviewed his institutional file, which reported his 2007 misconduct for engaging in sexual acts

or sodomy. Ud. § 4-7.) Curtis’ file also included an “Integrated Case Summary—Initial

Classification Summary” which stated that he had been charged with and found guilty of

Aggravated Indecent Assault, which Brannen correctly understood to be a felony sex crime in

Pennsylvania. Ud. Jf 8-10.) See 18 Pa. C.S.§ 3125. Based on Brannen’s file review, she

recommended that Curtis participate in High Intensity Sex Offender Programming. (Defs.’ Ex. 2,

ECF 99-2, at § 11.) Curtis, however, denied he had ever been convicted of a sex crime and asserted

he had been wrongly accused of sexual misconduct in 2007. (Defs.’ Ex. 2, ECF 99-2, at ¥ 12;

Defs.’ Ex. 1, ECF 99-1, at 16:3-17:22.)

To participate in the cognitive behavior-based Sex Offender Programming, inmates are

required to accept responsibility for their sexual misbehavior. (Defs.’ Ex. 3, ECF 99-3 at ECF p.

11, 4] 25-28; Defs.’ Ex. 5, ECF 143-1, 4 10.) Curtis was asked to sign a “Limits of Confidentiality”

Agreement acknowledging he was participating in treatment “to reduce the risk that [he] might re-

offend” and permitting his treatment team to “report to the proper authorities any occurrence or

potential occurrence of behaviors or intentions that constitute a risk to myself or others.” (Defs.’

Ex. 9, ECF 143-8.) On March 22, 2012, Curtis signed the form, but did so under a handwritten

note stating that “[T]his is coercion. I was told I’d be locked down if I did not agree to participate.”

Curtis testified it was his belief that by signing the paper, he “would have made a false

material statement that [he] had been convicted of a sexual criminal act, because [he] never pled

guilty to or never was found guilty of a sexual act.” (Defs.’ Ex. 1 at 21:25-22:6.) After that, Curtis

refused to sign the “Limits of Confidentiality” Agreement again on more than one occasion. (/d.

at 23:21-24:18.) Kelly explained that Curtis would not participate in Sex Offender Programming

even though he was told that if he did not attend the programming, he would be returned to the

Restricted Release List and the Restricted Housing Unit. (Defs.’ Ex. 4, ECF 99-4, at § 18.) Kelly

issued Curtis a misconduct for his refusal to participate in Sex Offender Programming. (Defs.’ Ex.

1 at 29:8-13.) Thereafter, Curtis was returned to the Restricted Housing Unit and remained in

Administrative Custody at Graterford. (Ud. at 30:9-25.) Kelly explained this was because Curtis

was “a danger to others in the institution.” (Defs.’ Ex. 4, ECF 99-4, at 19; see also Defs.’ Ex.

5C, ECF 143-2 at ECF p. 3.)

4, Curtis had a Renchenski hearing after SCI Graterford learned he had

not been convicted of aggravated indecent assault.

After Curtis filed this lawsuit, Brannen learned the information in Curtis’ “Integrated Case

Summary” relating to his criminal conviction was inaccurate. (Defs.’ Ex. 2, ECF 99-2 at § 27.) In

fact, Curtis did not have a conviction for aggravated indecent assault and his file regrettably

included erroneous information. (/d.) Thereafter, in an effort to remedy the impact of the DOC’s

flawed records, then-Secretary of Corrections John Wetzel appointed an independent hearing

officer to evaluate whether, without the erroneous conviction, there was just cause to classify

Curtis as a sex offender in accordance with the procedure required in Renchenski v. Williams, 622

F.3d 315, 335 (3d Cir. 2010).° (Defs.’ Ex. 3, ECF 99-3 at ECF p. 4 and ECF p. 4 n.1.) Curtis

received advance written notice of a hearing in August 2015 and provided written submissions to

the hearing officer but declined to appear. (Defs.’ Ex. 3, ECF 99-3 at ECF p. 4-5.)

The hearing examiner found the DOC presented “credible” evidence of just cause,

explaining Curtis “did not avail himself of the opportunity to present evidence of record that might

contradict any of the [DOC’s] evidence” at the Renchenski hearing. Ud. at ECF p. 18.) She

ultimately concluded that even though Curtis “was not criminally convicted of a sexual offense,”

his “history of inappropriate sexual behavior, including his sexual assault on another inmate,

warrant[ed] classifying him as a sex offender and requiring him to participate in sex offender

treatment programming.” (Jd. at ECF p. 17-19.) In support of her decision, she noted the DOC’s

“duty ... to recommend sex offender treatment programming for those who are in need of

5 In Renchenski, the Third Circuit held that “only after a prisoner has been afforded due

process may sex offender conditions be imposed on an inmate who has not been convicted of a

sexual offense.” 622 F.3d at 326.

rehabilitation and... to protect other inmates and Department staff from sexually predatory

individuals ....” Ud. at ECF p. 18.)

5. Curtis eventually was transferred to a general population unit.

Following the hearing officer’s decision, Curtis remained on the Restricted Release List in

Administrative Custody, first at SCI-Graterford and then at its successor SCI-Phoenix, until May

2019, when then-Secretary Wetzel or the DOC’s then-regional deputy secretary, Deputy Michael

Wenerowicz, reviewed Curtis’ Restricted-Release-List status and determined Curtis should

participate in the DOC’s PORTAL program at SCI-Pine Grove. (Defs.’ Ex. 5, ECF 143-1 at □□□□

PORTAL “provides a gateway for inmates to re-integrate into general population, while providing

therapeutic programming, education, and socialization opportunities for inmates confined to a

Level 5 setting for extended periods.” (/d. § 3.) Inmates in the PORTAL program are assigned to

individual cells in Administrative Custody but are not in “solitary confinement.” Ud. § 4.) They

meet with counselors, may interact with staff and inmates, and have out-of-cell activity

opportunities. (/d.) Inmates who progress to PORTAL Phase III “are allowed out of their cells at

least 20 hours per week with yard and day room recreation time together with another Phase III

inmate.” (/d.) In June 2019, the Program Review Committee promoted Curtis to Phase III of the

PORTAL program. Ud. § 12.) By December 2019, Curtis was transferred to Phase II of the

PORTAL program, although he remained uninterested in Sex Offender Programming. (Defs.’ Ex.

12, ECF 194-1 at ECF p. 173.) By June 2020, Curtis had completed the PORTAL Program’s

violence prevention component, but continued to refuse Sex Offender Programming based on his

belief that he had been placed on the Restricted Release List because of four “make believe”

confidential informants “giving untrue stories about him.” (Defs.’ Ex. 13, ECF 194-1 at ECF p.

178.) DOC staff voted to retain Curtis on the Restricted Release List because of his Sex Offender

Programming refusal and his “history of sexual predatory behaviors.” Ud. at ECF p. 178-79.)

When the DOC Program Review Committee reviewed Curtis’ status in November 2020, it

recommended maintaining his status on the Restricted Release List in Administrative Custody.

(Defs.’ Ex. 14, ECF 194-1 at ECF p. 176.) By October 2021, Curtis had been relocated to SCI-

Greene and was transferred to SCI-Coal Township. (Wheary Decl., Defs.’ Ex. 16, § 3, ECF 194-1

at ECF p. 178.) In November 2021, Curtis moved to SCI-Coal Township’s J-Block: “a general

population unit with all standard general population privileges.” Ud. {J 4-5.)

B. Procedural history

After Curtis filed his Complaint, Defendants Wetzel, Klopotozki, Wenerowicz, Lewis and

Shaylor moved to dismiss Curtis’s claims against them. Ruling on their motions in 2015, Judge

Stengel held the Eleventh Amendment barred Curtis’s official capacity claims against them. Curtis

v. Wetzel, No. 14-786, 2015 WL 5115439, at *5 (E.D. Pa. Aug. 28, 2015). He held Curtis failed to

allege sufficient facts to show their personal involvement in the alleged conduct, barring his First

and Fourteenth Amendment claims against the five defendants in their individual capacities. /d. at

*5-7. He also dismissed Curtis’ Fifth Amendment claim, holding the consequences Curtis faced

for his refusal to participate in Sex Offender Programming did “not rise to the level of compulsion

which would compel a prisoner to expose himself to criminal liability.” Jd. at *7.

After discovery, Curtis and the remaining Defendants filed cross-motions for Summary

Judgment. Judge Stengel granted summary judgment in the remaining Defendants favor with

respect to Curtis’ First Amendment retaliation claim because he “did not engage in protected

activity when he refused to sign the sex offender program form.” Curtis v. Wetzel, No. 14-786,

2017 WL 1163888, at *4 (E.D. Pa. Mar. 29, 2017). He held qualified immunity shielded the

remaining Defendants from Curtis’ First and Fourteenth Amendment claims because they “could

reasonably believe they were not violating clearly established law when they required Mr. Curtis

to participate in the sex offender program or return to the restricted housing unit” when “his records

indicated that Mr. Curtis was convicted of a sex crime.” Jd. at *4. He also granted summary

judgment in the remaining Defendants’ favor with respect to Curtis’ state law claims, finding they

were “barred by sovereign immunity.” /d. at *5. Curtis appealed in April 2017 after Judge Stengel

denied his timely motion under Federal Rule of Civil Procedure 60(b). (ECF 124; see also ECF

123.)

The Third Circuit affirmed the dismissal of all claims against Defendants Wenerowicz,

Lewis and Shaylor based on their lack of personal involvement but found Curtis sufficiently

alleged Wetzel’s and Klopotowski’s personal involvement and reversed their dismissal. Curtis v.

Wetzel, 763 F. App’x 259, 263 (3d Cir. 2019). It affirmed Judge Stengel’s determination that

qualified immunity barred Curtis’ First, Fifth and Fourteenth Amendment claims for monetary

damages but held qualified immunity does not bar his First, Fifth and Fourteenth Amendment

claims for declaratory and injunctive relief (1.e., his request to be released into the general

population and the removal of any references to him as a sex offender in DOC records). Jd. at 264.

So, the Third Circuit vacated the District Court’s “determination that the defendants’ threats of

solitary confinement did not rise to the level of compulsion for Fifth Amendment purposes,” and

its “judgment insofar as it rejected Curtis’ First Amendment claim on the basis that his speech was

personal, rather than a matter of public concern... .” /d. at 266. It directed the Court to consider

on remand “whether labeling Curtis a sex offender and requiring that he attend Sex Offender

Programming violated his First and Fourteenth Amendment rights” and whether Defendants’

“threats to place Curtis in solitary confinement indefinitely rose to the level of compulsion” if

Curtis’ “requests for declaratory and injunctive relief are not moot... .” Jd. at 264.

In June 2019, following remand, Curtis moved for the appointment of counsel. (ECF 142.)

His case was referred to the Eastern District of Pennsylvania’s Prisoner Civil Rights Panel (ECF

144), and a member of the prisoner panel was appointed to represent Curtis in August 2020. (ECF

171.) That attorney subsequently informed the Court that he was unable to proceed on Curtis’

behalf, so the Court renewed the search for counsel from the Prisoner Civil Rights Panel. (ECF

175.) Curtis confirmed his desire to wait for counsel from the Prisoner Civil Rights Panel in March

2021. (ECF 177.) When no attorney had volunteered to accept appointment by January 2022, the

Court informed Curtis that he would be required to represent himself on a going forward basis.

(ECF 184.) Defendants filed the motion which is the subject of this Opinion in April 2022 (ECF

194). Curtis subsequently asked for two extensions of time to respond (ECF 195, 205), which the

Court granted. (ECF 196, 206.) Consistent with footnote 3 above, the Court has considered Curtis’s

numerous responsive filings in reaching its decision today.

I. STANDARD OF REVIEW

A. Motion to dismiss

To withstand dismissal, Curtis’ Complaint “must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Fed. R. Civ. P.

12(b)(6). A claim is facially plausible when the facts pled “allow[ | the court to draw the reasonable

inference that [a] defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “[W]here

the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,

the complaint has alleged——but it has not ‘show|n]’——‘that the pleader is entitled to relief.’” Jd. at

679 (quoting Fed. R. Civ. P. 8(a)(2)).

When a complaint includes well-pleaded factual allegations, the Court “should assume

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their veracity and then determine whether they plausibly give rise to an entitlement to relief.”

Connelly y. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 679).

However, this “presumption of truth attaches only to those allegations for which there is sufficient

factual matter to render them plausible on their face.” Schuchardt v. President of the U.S., 839

F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). This plausibility

determination is a “context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Jd. (quoting Connelly, 809 F.3d at 786-87).

B. Summary judgment

Summary judgment is proper if the movant proves that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);

see also Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288 (3d Cir. 2018). A fact is “material” if

it may affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). A “genuine dispute” exists “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Jd. A mere scintilla of evidence supporting

the nonmoving party, however, will not suffice. Jd. at 252. Rather, the nonmovant must “set forth

specific facts showing that there is a genuine issue for trial.” Jd. at 256.

At summary judgment, a court may consider any material in the record that may be

admissible at trial. See Fed. R. Civ. P. 56(c); Pamintuan v. Nanticoke Mem’l Hosp., 192 F.3d 378,

387-88 & n.13 (3d Cir. 1999). In doing so, a court “must view the facts in the light most favorable

to the nonmoving party and draw all inferences in that party's favor.” Prowel v. Wise Bus. Forms,

579 F.3d 285, 286 (3d Cir. 2009). But it need not credit “[u]nsupported assertions, conclusory

allegations, or mere suspicions.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir.

2010). Nor may a court make credibility determinations or weigh the evidence. See Parkell v.

1]

Danberg, 833 F.3d 313, 323 (3d Cir. 2016).

Il. DISCUSSION

A. Curtis’ claims for equitable relief are moot.

Curtis’ claims may only proceed if they are not moot. The Court “has neither the power to

render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case

before” it. Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (citations and quotations omitted).

1. Curtis’ official capacity claims for equitable relief against Defendants

Lane, Olinger, Bolton, Regan, Birmingham, Brannen, and Kelly are

moot.

Curtis seeks equitable relief in the form of removal from the Restricted Release List and

release to the general population. Defendants argue Curtis’ official-capacity claims for equitable

relief cannot proceed against Defendants Lane, Olinger, Bolton, Regan, Birmingham, Brannen,

and Kelly because they were officials at SCI-Graterford and its successor institution SCI-Phoenix.

Since the events alleged in Curtis’ Complaint, he has been transferred to SCI-Coal Township. (See

ECF 137.) SCI-Graterford’s closure bars his future assignment there and Curtis has set forth no

evidence to show “that he will ever be assigned again to SCI-Phoenix as his ‘home’ institution,”

instead, the Court “can only speculate” that this could happen. (Defs.’ Mot., ECF 194 at 10.)

Moreover, the Court can only speculate that any of these Defendants might endeavor to remove

Curtis from the general population based on his failure to participate in Sex Offender

Programming. Speculation is not enough. Curtis’ transfer moots his requests for equitable relief as

to these officials from SCI-Graterford/SCI-Phoenix. See Griffin v. Beard, 401 F. App’x 715, 716-

17 (3d Cir. 2010) (holding inmate’s claim for injunctive relief was mooted by his transfer from

SCI-Huntingdon); Fantauzzi v. Wetzel, No. 18-5166, 2019 WL 4543095, at *12 (E.D. Pa. Sept.

18, 2019) (holding the plaintiffs claims for injunctive and declaratory relief were “moot—even if

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they were potentially valid while incarcerated at SCI-Graterford—as he was no longer enduring

the alleged conditions at SCI-Graterford” after his transfer). The Court dismisses these claims.

2. Curtis’ official capacity claims for equitable relief against the Acting

Secretary and Deputy Secretary of the DOC are moot.

Even though Curtis’ transfer to SCI-Coal Township alone did not moot his official-capacity

claims for equitable relief against the Acting Secretary and Deputy Secretary of the DOC, these

claims likewise are moot. There is an exception to the mootness doctrine in “exceptional

situations” for controversies that are “capable of repetition, yet evading review.” Kingdomware

Techs., Inc. v. United States, 579 U.S. 162, 170 (2016) (citation and internal quotation omitted).

In theory, Curtis could be threatened with solitary confinement for not participating in Sex

Offender Programming again. However, the mootness exception applies only when (1) the

challenged action is too brief “to be fully litigated prior to cessation or expiration,” and (2) it can

be reasonably expected “that the same complaining party [will] be subject to the same action

again.” /d. Even if Curtis could show that the time during which he was placed on the Restricted

Release List was too short to be fully litigated, there must still be some reasonable expectation that

he would again be subject to placement on the Restricted Release List based on his refusal to

participate in Sex Offender Programming. Nothing in the record suggests there is a reasonable

expectation that he will be threatened again with indefinite solitary confinement within the

Pennsylvania DOC for refusing to admit to engaging in sexual misconduct. Curtis was removed

from the Restricted Release List in November 202 1after his transfer to the PORTAL program and

released into the general population “with all standard general population privileges.” (Wheary

Decl., Defs.’ Ex. 16, ECF 194-1 at ECF p. 178.) The mootness exception does not apply to permit

Curtis’ official-capacity claims for equitable relief against the Acting Secretary and Deputy

Secretary of the DOC to proceed. The Court dismisses these claims as well.

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B. Wetzel and Klopotoski are entitled to qualified immunity on

Curtis’s remaining claims.

The Third Circuit affirmed that qualified immunity bars Curtis’ First, Fifth, and Fourteenth

Amendment damages claims against the Defendants other than Wetzel and Klopotoski. Curtis,

763 F. App’x at 264. Because Curtis’ damages claims against Wetzel and Klopotoski were

dismissed prior to summary judgment before his appeal, the Court has yet to determine whether

the doctrine also shields Wetzel and Klopotoski from those claims. Since the Third Circuit vacated

their dismissal, the Court considers that question now and finds that it does.

Qualified immunity is an affirmative defense that “shields officials from harassment,

distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan,

555 U.S. 223, 231 (2009). Qualified immunity is generally a question of law that should be

considered at the earliest possible stage of the proceedings, although a genuine dispute of material

fact may preclude summary judgment on the defense. See Giles v. Kearney, 571 F.3d 318, 325-26

(3d Cir. 2009). “Whenever a district court denies a public official qualified immunity at summary

judgment, the court must analyze separately, and state findings with respect to, the specific conduct

of each defendant.” Dean v. Borough of Glassboro, No. 21-2468, 2023 WL 2597586, at *3 (3d

Cir. Mar. 22, 2023) (citation and internal quotation omitted). To assess whether qualified immunity

exists, courts consider: (1) whether the facts “show the violation of a constitutional right, and

(2) whether the law was clearly established at the time of the violation.” Kelly v. Borough of

Carlisle, 622 F.3d 248, 253 (3d Cir. 2010) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).

“{Qjualified immunity protects ‘all but the plainly incompetent or those who knowingly violate

the law.’” Williams v. City of York, 967 F.3d 252, 259 (3d Cir. 2020) (quoting Malley v. Briggs,

475 U.S. 335, 341 (1986)).

The Third Circuit has already explained that the other Defendants “reasonably relied on

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the DOC’s records” when they required Curtis to participate in Sex Offender Programming and

that Curtis “had not presented any evidence that the prison records were inaccurate.” Curtis, 763 F.

App’x at 264. Moreover, Curtis failed to “identif[y] any clearly established law that would have

required prison officials to investigate his claims before requiring that he participate in [Sex

Offender Programming].” /d.; see also id. at 265 (“As with his First and Fourteenth Amendment

Claims, Curtis’ Fifth Amendment claim fails on qualified immunity grounds to the extent that he

sought damages.”’).

“Usually, the law of the case doctrine dictates that when a court decides upon a rule of law,

that decision should continue to govern the same issues in subsequent stages in the same case.

Mack v. Yost, 63 F.4th 211, 231 Gd Cir. 2023) (citation and internal quotation omitted). Curtis has

not shown any reason why the same qualified immunity analysis that barred his damages claims

against the other Defendants should not apply to bar his damages claims against either former

Secretary Wetzel or former Deputy Secretary Klopotoski. “A government official’s conduct

violates clearly established law when, at the time of the challenged conduct, every reasonable

official would understand that what he is doing violates the right alleged.” Curtis, 763 F. App’x at

263-64 (citation omitted). There is no record evidence sufficient to show any material question of

fact exists as to whether either Wetzel or Klopotoski had any reason to understand they had an

obligation to investigate beyond the information included in his Integrated Case Summary—lnitial

Classification Summary and to consider Curtis’ original court records when Curtis was placed on

the Restricted Release List for refusing to agree to participate in Sex Offender Programming.

Wetzel and Klopotoski, like the other Defendants, are entitled to summary judgment in their favor

on Curtis’ claims for damages under the First, Fifth, and Fourteenth Amendments because the

doctrine of qualified immunity bars the claims.

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IV. CONCLUSION

While the circumstance giving rise to Curtis’ claims in this case—the DOC’s inaccurate

recordkeeping—is regrettable, it does not provide a basis for any relief. The Court grants

Defendants’ motion because Curtis’ remaining claims for equitable relief are moot and his

remaining claims for damages are barred by the doctrine of qualified immunity.

An Order consistent with this Memorandum will be docketed separately.

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