RUSH v. WETZEL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOHN L. RUSH, et al., )

) Case No. 1:21-cv-00316

Plaintiffs, )

) District Judge Arthur J. Schwab

v. ) Magistrate Judge Kezia O. L. Taylor

)

JOHN E. WETZEL, et al., )

)

Defendants. )

MEMORANDUM OPINION

This case involves a challenge to the Pennsylvania Department of Corrections (“DOC”)

policy of instituting segregated housing and other related restrictions based on vaccination status

during the Covid-19 pandemic. Plaintiffs in this case are all adult state prisoners who currently

are, or have been, housed at SCI-Forest, are unvaccinated for Covid-19 and were subject to the

DOC’s segregation policy.

The Defendants in this action are DOC officials. They filed a partial Motion to Dismiss,

which the Court granted on May 15, 2023. See ECF Nos. 127, 129. As a result of that Order

granting the partial Motion to Dismiss, the sole remaining claims in this action by the twenty-six

remaining Plaintiffs1 are (1) a procedural due process violation claim and (2) a claim against the

1 While the case was initially brought by forty-four Plaintiffs proceeding pro se, see ECF No. 44,

the Court directed the Clerk of Court to find pro bono counsel wiling to represent the Plaintiffs

due to their numerosity and the nature of their allegations at the time their Complaint was filed.

See ECF Nos. 48, 52. Counsel graciously accepted representation and eventually filed an

Amended Complaint on behalf of the forty-four Plaintiffs. See ECF Nos. 87, 88, 104. However,

eighteen of those forty-four Plaintiffs did not return signed engagement letters, so counsel

eventually withdrew their appearance on behalf of those Plaintiffs and the Court later entered an

order dismissing them from this action without prejudice. See ECF Nos. 116, 117, 123, 124.

Counsel also eventually withdrew their appearance on behalf of one additional Plaintiff, Randy

Anderson, who elected to proceed in this action pro se. See ECF Nos. 148, 149. Counsel therefore

represents twenty-five of the original forty-four Plaintiffs, and those Plaintiffs will hereinafter be

Defendants in their official capacities for prospective injunctive relief. Id. As it relates to the

procedural due process claim, the Plaintiffs’ Amended Complaint asserts that “Defendants denied

[them] their right to procedural due process by, among other things, confining them to near solitary

confinement without basis and without presenting Plaintiffs an opportunity to challenge the

confinement.” ECF No. 104 ¶ 56. Plaintiffs seek an injunction to enjoin Defendants from

enforcing the policy of segregating and imposing restrictions on inmates based on vaccination

status. Id. at 11.

Pending for review are the following motions and briefs, and their corresponding

responsive filings:

1. Defendants’ Motion for Summary Judgment, ECF No. 168, Brief in Support

thereof, ECF No. 169, Concise Statement of Material Facts, ECF No. 170, and

Appendix, ECF No. 171. Represented Plaintiffs’ Brief in Opposition to the

Motion for Summary Judgment, ECF No. 196, their Responsive Concise

Statement and Statement of Additional Material Facts, ECF No. 195, and

Appendix, ECF No. 197. Defendants’ Reply to Represented Plaintiffs’ Brief in

Opposition, ECF No. 198. Pro se Plaintiff Anderson’s Brief in Opposition to

the Motion for Summary Judgment, ECF No. 193, and his Response to

Defendants’ Concise Statement of Material Facts, ECF No. 206.

2. Pro se Plaintiff Anderson’s Motion for Summary Judgment, ECF No. 173, and

Defendants’ Response thereto, ECF No. 176.

3. Represented Plaintiffs’ Motion to Enforce Settlement Agreement, ECF No.

189, and Defendants’ Response in Opposition thereto, ECF No. 192.

For the reasons that follow, the Represented Plaintiffs’ Motion to Enforce Settlement Agreement

will be denied, Defendants’ Motion for Summary Judgment will be granted and pro se Plaintiff

Anderson’s Motion for Summary Judgment will be denied.

referred to as the “Represented Plaintiffs” while Plaintiff Randy Anderson will be referred to as

“pro se Plaintiff Anderson.” Collectively they will be referred to as “Plaintiffs.”

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A. Motion to Enforce Settlement Agreement

As an initial matter, the Court will address the Represented Plaintiffs’ pending Motion to

Enforce Settlement Agreement. The Represented Plaintiffs seek an order enforcing the settlement

agreement that was allegedly agreed to in principle in or about April 2024, but the Defendants

dispute that a settlement was ever completely reached or entered into by the parties and therefore

maintain that there is no settlement to be enforced. The Court finds that it need not determine

whether such a settlement agreement exists because, even if the parties did enter into such an

agreement, the Prison Litigation Reform Act (“PLRA”) bars this Court from ordering enforcement

of it.

The PLRA, as codified in 18 U.S.C. § 3626, comprehensively revised the rules of

injunctive litigation in prison condition cases, including setting a standard governing the term of

prison injunctions and other prospective relief and requiring courts to make findings about the

relationship between prospective relief provisions and the legal violations that they are intended

to correct. Neither the Represented Plaintiffs’ counsel nor Defendants’ counsel discusses the

PLRA’s application to the Motion, but the Court must do so because the PLRA expressly addresses

the remedies available to a party that is alleging, as the Represented Plaintiffs are here, that a

private settlement agreement should be enforced.

The PLRA provides that private settlement agreements that involve prospective relief, such

as the one in which the Represented Plaintiffs argue was entered into in this case, lack any judicial

enforcement in federal court “other than the reinstatement of the civil proceeding that the

agreement settled.” 18 U.S.C. § 3626(c)(2)(A). That is because under the PLRA, injunctive

settlements must meet the standards and finding requirements of 18 U.S.C. § 3626(a) in order to

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be enforceable in federal court. This means that the court must find that the settlement is narrowly

drawn, necessary to correct federal law violations, and the least intrusive way to do so. 18 U.S.C.

§ 3626(a)(1)(A).2 Settlements that satisfy the PLRA’s standards and finding requirements are

entered by the court as consent decrees and are judicially enforceable by that court. Id. §

3626(c)(1).3 See also Ingles v. Toro, 438 F. Supp. 2d 203, 214-15 (S.D.N.Y. 2006); Honorable

Harold Baer, Jr., Arminda Bepko, A Necessary and Proper Role for Federal Courts in Prison

Reform: The Benjamin v. Malcolm Consent Decrees, 52 N.Y.L. Sch. L. Rev. 3, 51-55 (2008)

(available on Westlaw).

The PLRA does not prevent parties from reaching private settlement agreements, but such

agreements are not subject to the district court’s enforcement “other than the reinstatement of the

civil proceeding that the agreement settled.” Id. § 3626(c)(2)(A);4 see also id. § 3626(g)(6)

(defining private settlement agreement as “an agreement entered into among the parties that is not

2 Section 3626(a)(1)(A) provides: “Prospective relief in any civil action with respect to prison

conditions shall extend no further than necessary to correct the violation of the Federal right of a

particular plaintiff or plaintiffs. The Court shall not grant or approve any prospective relief unless

the court finds that such relief is narrowly drawn, extends no further than necessary to correct the

violation of the Federal right, and is the least intrusive means necessary to correct the violation of

the Federal right.”) (emphasis added). The PLRA defines “prospective relief” as “all relief other

than compensatory monetary damages.” 18 U.S.C. § 3626(g)(7). It defines “relief” as “all relief

in any form that may be granted or approved by the court, and includes consent decrees but does

not include private settlement agreements.” Id. § 3626(g)(9).

3 Section 3626(c)(1) provides: “In any civil action with respect to prison conditions, the court shall

not enter or approve a consent decree unless it complies with the limitations on relief set forth in

subsection (a).”

4 Section 3626(c)(2)(A) provides: “Nothing in this section shall preclude parties from entering into

a private settlement agreement that does not comply with the limitations on relief set forth in

subsection (a), if the terms of that agreement are not subject to court enforcement other than the

reinstatement of the civil proceeding that the agreement settled.” (Emphasis added).

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subject to judicial enforcement other than the reinstatement of the civil proceeding that the

agreement settled[.]”) Ingles, 438 F. Supp. 2d at 214-15 (critiquing the inability of a federal court

to enforce a private settlement agreement in a case governed by the PLRA). Thus, assuming there

was a settlement agreement reached between the parties, the PLRA bars this Court from enforcing

it.5 As such, the Represented Plaintiffs’ Motion will be denied.

B. Relevant Factual Background

The following facts are taken from the parties’ concise statements of material facts, and

responses thereto, and are undisputed unless otherwise indicated. The Court notes, however, that

Defendants failed to file a responsive concise statement of material facts to the Represented

Plaintiffs’ additional material facts at issue. Those facts will therefore be deemed admitted unless

they were otherwise disputed elsewhere in the Defendants’ concise statement. See LCvR 56.E;

Enigh v. Miller, Civil No. 08-1726, 2010 WL 2926213 (W.D. Pa. July 23, 2010) (collecting cases).

SCI Forest is located in Marienville, Pennsylvania and is comprised of a 64-acre compound

with 26 buildings including 11 housing units, three inmate dining halls, a hospital, both law and

regular libraries, an educational and religious complex, two large recreational yards and individual

recreation areas for each housing unit. ECF No. 195 ¶ 69. It offers both academic and vocational

programs. Id. ¶ 70. Defendant Oberlander began as Superintendent at SCI-Forest in March 2019

5 A plaintiff who wishes to litigate a claim that a private agreement was breached may file a breach

of contract claim in state court. See 18 U.S.C. § 3626(c)(2)(B) (“Nothing in this section shall

preclude any party claiming that a private settlement agreement has been breached from seeking

in State court any remedy available under State law.”); Ghana v. New Jersey State Parole Bd., No.

01-cv-1620, 2011 WL 3608633, at *3 (D.N.J. Aug. 15, 2011) (under the PLRA, “if a settlement

agreement is not by way of consent decree, a party asserting a breach of that settlement agreement

is limited to moving for reinstatement of the action in federal court or filing an action in state court

for breach of contract.”) (internal quotations omitted); Ingles, 438 F. Supp. 2d at 215.

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and retired from the DOC in June 2022. ECF No. 170 ¶ 1. Defendant Irwin replaced Oberlander

as Superintendent in June 2022. Id. ¶ 2.

Prior to the Covid-19 pandemic, SCI-Forest’s daily schedule permitted inmates access to,

among other things, communal dining halls, main yard, concrete yard, dayroom (with both A and

B sides of a block together for two hours in the morning, afternoon, and evening), the law library

(up to 3 slots per week), schooling and programming. ECF No. 195 ¶ 71. When SCI-Forest called

concrete yard, both sides of a block, approximately 240 people, could go out to the concrete yard

or the day room at the same time. Id. ¶ 72. In response to the pandemic, however, SCI-Forest

instituted a new daily schedule that restricted the number of inmates permitted to go to the concrete

yard and day room at a time. Id. ¶¶ 73-74. Following the institution of this new schedule, only

one side of a pod was permitted to go out - half of one side would go to concrete yard while the

other half stayed in the day room. Id. ¶ 74. As a result, no more than 60 people were in an area at

a time. Id. Additionally, communal dining and contact visits for all inmates stopped and staff

were required to do temperature screenings, check for symptoms, and wear masks. ECF No. 170

¶¶ 13-14, 16.

Covid-19 vaccines were first made available to inmates at SCI-Forest on or about April 8,

2021, but inmates were not required to receive the vaccine. Id. ¶¶ 5-6. In early August 2021,

inmates were informed that their failure to receive a vaccine would “impact their movement,” and

inmates who chose not to receive the vaccine were advised that they would be housed in a separate

unit from the inmates who did receive the vaccine. Id. ¶ 20. On or about August 4, 2021, DOC

Central Office mandated that unvaccinated prisoners be placed under segregation in a housing unit

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separate from vaccinated prisoners to minimize their risk of exposure to Covid-19.6 Id. ¶ 8. On

that day, Defendant Oberlander recorded a video that was shown to inmates at SCI-Forest

informing them that Central Office gave the direction to separate vaccinated and unvaccinated

inmates due to the Delta variant surge. Id. ¶ 22. Mini town halls were conducted with the

unvaccinated inmates on August 4, 2021 and August 5, 2021, and a second video, recorded by

Defendant Wetzel, was shown to the inmates on August 5, 2021, explaining what was going to

occur with the unvaccinated inmates – specifically, that they would no longer be able to have in-

person contact visits or work in their employment and that their out of cell time would be less than

that of inmates who received the vaccine. Id. ¶¶ 22-23; ECF No. 195 ¶ 88.

On August 5, 2021, SCI-Forest conducted a vaccination clinic, during which 185

previously unvaccinated inmates elected to receive the vaccine. Id. ¶ 19. The following day, on

August 6, 2021, general population inmates at SCI-Forest who remained unvaccinated were moved

to the A pod of G unit (“GA unit”).7 Id. ¶ 10. On or about August 9, 2021, there were

approximately 60 unvaccinated general population inmates who were housed on GA unit. Id. ¶

28.

6 According to Defendant Oberlander, Central Office made the decision to segregate inmates based

upon vaccination status because “that was the time frame when contact visits were getting ready

to start back up and that there was a concern with the numbers of Delta variant cases.” ECF No.

195 ¶ 80. He did not recall providing input on the policy to separate vaccinated and unvaccinated

inmates, although he did admit that Central Office would sometimes ask him for his input into

policy decisions for policies. Id. ¶ 79.

7 Unvaccinated inmates who later elected to receive the vaccine could put in a request or speak to

their unit team to be moved off the unvaccinated unit. ECF No. 170 ¶ 24. However, it is either

not known or it is disputed how quickly the transition actually occurred after the request was made

by the inmate. ECF No. 195 ¶¶ 24, 92

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To minimize their risk of exposure, unvaccinated inmates could not be in a class,

programming, or religious services with vaccinated inmates. Id. ¶ 26. Unvaccinated units operated

as their own zone based on the risk for Covid-19 to keep that population safe. Id. GA unit was on

a 32-person cohort unless the risk level moved to yellow (16-person cohort) or red (4-person

cohort) based on the estimated immunity rate. Id. ¶ 27. Notably, however, there was no

requirement for any staff member to be vaccinated before working on either the vaccinated or

unvaccinated unit. ECF No. 195 ¶ 94. Both vaccinated and unvaccinated staff were allowed to

work on any unit. Id. ¶ 97. However, staff who chose not to receive the vaccine had mandatory

weekly Covid-19 tests. ECF No. 170 ¶ 16. Also of note, while contact visits resumed for

vaccinated inmates in August 2021, visitors participating in contact visits only had to affirm, but

did not have to show proof, that they were vaccinated in order to visit. Id. ¶¶ 14-15.

When inmates tested positive for Covid-19 they were placed in insolation, regardless of

their vaccination status. Id. ¶ 18. There was no difference in how a Covid-19 positive inmate was

treated with regard to whether they were vaccinated or unvaccinated, the isolation practice for

positive cases remained the same. Id.

The Weekly Leadership Update email sent to DOC Leadership on August 5, 2021, stated

that “[u]nvaccinated status will not impact an inmate’s access to services.” Id. ¶ 25. Plaintiffs,

however, dispute that their access to services was not limited by their unvaccinated status and

maintain that they “were treated worse than vaccinated inmates and endured heightened

restrictions on their freedoms and confinement.” ECF No. 195 ¶ 25.

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The parties note the following differences in the conditions of confinement between

vaccinated and unvaccinated inmates at SCI-Forest during the time the segregation policy was in

place.

Out of cell time: Unvaccinated inmates had less out of cell time than their vaccinated

counterparts and during the time that they were out of their cells they were kept away from

vaccinated inmates to minimize infections. ECF No. 170 ¶ 31; ECF No. 195 ¶¶ 31, 101, 105.

Although the exact amount of time unvaccinated inmates were confined to their cells per day

appears to be a matter of dispute between the parties, it is agreed that they had access to either two

or three hours of out of cell time a day, depending on what they signed up for, with a potential for

four hours a day beginning in January 2022. ECF No. 170 ¶¶ 29-30, 32; ECF No. 195 ¶¶ 29, 102,

106-107. To minimize potential Covid-19 exposure, unvaccinated inmates had their outdoor yard

time in a different yard and not the primary Main Yard. ECF No. 170 ¶ 29; ECF No. 195 ¶ 109.

Visitation: Unvaccinated inmates were not permitted to have in-person contact visits.

ECF No. 170 ¶ 41; ECF No. 195 ¶¶ 41, 111. Defendants maintain that unvaccinated inmates had

increased non-contact video visits, as well as daily phone access and access to email, but the

Represented Plaintiffs dispute whether unvaccinated inmates received the same time allotment on

video calls as vaccinated inmates received for contact visits.8 ECF No. 170 ¶ 41; ECF No. 195 ¶¶

41, 112-115. In-person visits for all inmates were suspended during the Omicron variant surge

from January 27, 2022, to February 28, 2022. ECF No. 170 ¶ 44. During that time, the DOC

8 It is undisputed that for approximately sixteen months, the DOC provided one free phone call per

week and free cable to all inmates. ECF No. 170 ¶ 35. When those services were discontinued,

free emails continued as did twelve free first-class letters per month. Id.

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provided all inmates with free weekly snack bags, free cable for the month of February, and two

free phone calls per week from January 24, 2022, to March 31, 2022. Id.

Programming and services: Starting on August 15, 2021, programming and services for

unvaccinated inmates were delivered in-cell, as opposed to in-person for vaccinated inmates. ECF

No. 170 ¶ 36; ECF No. 195 ¶¶ 103, 118-19, 123. Unvaccinated inmates received educational and

programming materials delivered to their cells, which they would work on and then return. ECF

No. 170 ¶ 37.

Law library: A law library kiosk terminal was installed on GA unit on August 9, 2021.

ECF No. 170 ¶ 34. Unvaccinated inmates were still permitted to access the law library as long as

the cohort did not exceed 32 and contained only inmates from GA unit, but Defendant Oberlander

could not confirm that they were able to access the law library for the same amount of time as

vaccinated inmates. ECF No. 170 ¶ 34; ECF No. 195 ¶¶ 34, 116.

Religious activities: Unvaccinated inmates were not allowed to participate in in-person

religious activities, although chaplains from religious services made regular rounds and religious

services were played on the inmate television channel for GA unit. ECF No. 170 ¶ 38.

Employment: Unvaccinated inmates were not permitted to work off GA unit as part of

the effort to minimize their exposure outside of their cohorts, but Defendants maintain that they

largely kept their job assignment and their rate of pay if they worked on GA unit. ECF No. 170 ¶

48. Defendants maintain that unvaccinated inmates who were not able to work as a result of the

segregation policy were still provided with their regular pay and were able to resume working if

they chose to become vaccinated. ECF No. 170 ¶ 47. The Represented Plaintiffs dispute this fact

and maintain that their employment and pay was negatively affected. ECF No. 195 ¶¶ 47, 120.

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On April 4, 2022, the DOC began to eliminate unvaccinated units and to integrate

unvaccinated inmates in with the vaccinated population as cell space became available. ECF No.

170 ¶ 49. Thus, the restrictions that were in place as part of the segregation policy for unvaccinated

inmates were lifted once the policy was over on April 4, 2022. Id. ¶ 50. On this day, unvaccinated

inmates were permitted to return to their previous work location at their previous rate of pay, be

transported with vaccinated inmates, and participate in programming, education, and religious

services off the unit. Id. ¶ 51. Starting on April 18, 2022, families were permitted to schedule

visits with unvaccinated inmates. Id. ¶ 53. After April 2022, there were no differences in how

vaccinated and unvaccinated inmates were assigned housing units or treated. Id. ¶ 54. However,

the Represented Plaintiffs maintain that Defendant Irwin has continued the restrictions that were

in place during the segregation mandate and that programming and services remain limited. ECF

No. 195 ¶¶ 50-51, 54, 126. They do not, however, set forth any specific continued restrictions still

in progress at SCI-Forest, and it appears that, to the extent any may remain, they affect all inmates

regardless of vaccination status. For example, it is undisputed that the chow-hall remains closed

to all inmates. ECF No. 170 ¶ 13.

C. Legal Standard

Summary judgment shall be granted if “the movant shows 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). Under this standard “the mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment; the requirement is

that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986). A disputed fact is “material” if proof of its existence or nonexistence would affect

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the outcome under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York

Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if

the evidence is such that a reasonable jury could return a verdict for the nonmoving party.

Anderson, 477 U.S. at 257; Brenner v. Loc. 514, United Bhd. of Carpenters and Joiners of Am.,

927 F.2d 1283, 1287-88 (3d Cir. 1991). When determining whether a genuine issue of material

fact remains for trial, the court must view the record and all reasonable inferences to be drawn

therefrom in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993);

Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Elec. Co.,

862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may

not rest on the unsubstantiated allegations of his or her pleadings. Instead, once the movant

satisfies its burden of identifying evidence that demonstrates the absence of a genuine issue of

material fact, the nonmoving party must go beyond his or her pleadings with affidavits,

depositions, answers to interrogatories or other record evidence to demonstrate specific material

facts that give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

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D. Discussion

1. Exhaustion of administrative remedies

Defendants move for summary judgment against all Plaintiffs, other than Plaintiffs Rush

and Hall, on the basis that these Plaintiffs did not properly exhaust their administrative remedies

under the PLRA prior to filing this lawsuit. The failure to exhaust administrative remedies “is an

affirmative defense the defendant must plead and prove.” Small v. Camden County, 728 F.3d 265,

268 (3d Cir. 2013).

Congress enacted the PLRA in 1996 in the wake of a sharp rise in prisoner litigation in the

federal courts. See Woodford v. Ngo, 548 U.S. 81, 84 (2006). As part of the PLRA, prisoners are

required to first exhaust all administrative remedies as are available prior to bringing an action

with respect to prison conditions pursuant to 42 U.S.C. § 1983, or any other federal law. See 42

U.S.C. § 1997e(a); see also Porter v. Nussle, 524 U.S. 516, 524 (2002) (exhaustion also mandatory

for Bivens suits brought by federal prisoners). Specifically, the act provides in pertinent part as

follows:

No action shall be brought with respect to prison conditions under section 1983 of

this title, or any other Federal law, by a prisoner confined in any jail, prison, or

other correctional facility until such administrative remedies as are available are

exhausted.

42 U.S.C. § 1997e(a). Exhaustion is mandatory under this provision regardless of the type of relief

sought and the type of relief available through administrative procedures. See Booth v. Churner,

532 U.S. 731, 741 (2001). In addition, the exhaustion requirement “applies to all inmate suits

about prison life, whether they involve general circumstances or particular episodes, and whether

they allege excessive force or some other wrong.” Porter, 534 U.S. at 532.

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The PLRA also mandates that inmates “properly” exhaust administrative remedies before

filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper exhaustion demands

compliance with an agency’s deadlines and other critical procedural rules because no adjunctive

system can function effectively without imposing some orderly structure on the course of its

proceedings.” Id. at 90-91. Importantly, “these procedural requirements are drawn from the

policies of the prison in question rather than any free-standing federal law.” Shifflett v. Korszniak,

934 F.3d 356, 364 (3d Cir. 2019); see also Drippe v. Tobelinksi, 604 F.3d 778, 781 (3d Cir. 2010)

(“the determination whether a prisoner properly exhausted a claim is made by evaluating

compliance with the prison’s specific grievance procedures.”)

There is only a single qualifier to the PLRA’s mandatory exhaustion requirement –

administrative remedies must be “available”. Ross v. Blake, 578 U.S. 632, 639 (2016). In this

context, “available” means “capable of use to obtain some relief for the action complained of.” Id.

at 642 (cleaned up). The Supreme Court has stated that a prison’s internal grievance process is

not “available” if, for example, (1) “it operates as a simple dead end – with officers unable or

consistently unwilling to provide any relief to aggrieved inmates,” (2) it is “so opaque that it

becomes, practically speaking, incapable of use” because “no ordinary prisoner can discern or

navigate it,” or (3) “prison administrators thwart inmates from taking advantage of [it] through

machination, misrepresentation, or intimidation.” Id. at 643-44. Additionally, the Third Circuit

has held that “as soon as a prison fails to respond to a properly submitted grievance or appeal

within the time limits prescribed by its own policies, it has made its administrative remedies

unavailable and the prison has fully discharged the PLRA’s exhaustion requirement” but only as

to the matters complained of and the relief sought in the grievance. Shifflett, 934 F.3d at 365.

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However, absent a situation where administrative remedies are not “available,” a court may not

excuse an inmate’s failure to exhaust “irrespective of any ‘special circumstances.’” Ross, 578 U.S.

at 639.

The Pennsylvania DOC has an official Inmate Grievance System that governs the

grievance and appeals process in Pennsylvania correctional institutions like SCI-Forest. See 37

Pa. Code § 93.9. The Inmate Grievance System is set forth in DC-ADM 8049, which provides for

three stages of grievance review: (1) Initial Review (DC-804 § 1(C)), (2) Appeal to Facility

Manager (DC-ADM 804 § 2(A)), and (3) Appeal to Final Review, which is the Secretary’s Office

of Inmate Grievance and Appeals (“SOIGA”) (DC-ADM 804 § 2(B)).

The parties do not dispute that the only Plaintiffs in this matter to have filed Covid related

grievances that were appealed to SOIGA are Plaintiffs Rush and Hall and that all other Plaintiffs

either did not file a Covid related grievance, or, if they did, they did not appeal the denial of their

grievance to SOIGA. ECF No. 170 ¶¶ 62-65; ECF No. 195 ¶¶ 62-65. What the parties do dispute

is whether all Plaintiffs other than Rush and Hall can be considered to have properly exhausted

through Plaintiffs Rush and Hall, and whether, pursuant to the recent Supreme Court case of Perttu

v. Richards, 605 U.S. 460 (2025), the exhaustion of administrative remedies under the PLRA may

be a question of fact for the jury to decide in this case. The Court will address each of these

arguments.

First, noting that the claims in this action are identical in law and fact as they relate to all

the Plaintiffs in this action, Plaintiffs argue that requiring every one of them to exhaust their

9 The DOC’s policies and procedure manuals are found on the Pennsylvania Department of

Corrections website at www.cor.pa.gov.

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administrative remedies would have been futile and proper exhaustion should therefore be

attributed to all of them through the exhaustion of administrative remedies by Plaintiffs Rush and

Hall. See ECF No. 196 at 11-13. Essentially, Plaintiffs argue in favor of the application of

vicarious exhaustion.

To date, the Third Circuit has not had the occasion to address this issue, but other circuits

have held that vicarious exhaustion may be permitted in civil rights cases where the prisoner

plaintiffs are certified as a class under Federal Rule of Civil Procedure 23. See, e.g., Chandler v.

Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004) (holding that “a class of prisoner-plaintiffs certified

under Rule 23(b)(2) satisfies the PLRA’s administrative exhaustion requirement through

‘vicarious exhaustion,’ i.e., when ‘one or more class members ha[s] exhausted his administrative

remedies with respect to each claim raised by the class.’”) (alteration in original); Gates v. Cook,

376 F.3d 323, 330 (5th Cir. 2004) (concluding that one plaintiff’s satisfaction of the Mississippi

Department of Corrections’ Administrative Remedy Program was “enough to satisfy the

requirement for the class”). District courts in other circuits, including the Third Circuit, have also

held that exhaustion of administrative remedies by one class member is sufficient to satisfy the

PLRA’s exhaustion requirement for the entire class. See, e.g., Barfield v. Cook, No. 3:18-cv-1198

(MPS), 2019 WL 3562021, at *8 (D. Conn. Aug. 6, 2019) (finding that the exhaustion requirement

was satisfied as to all class members due to the exhaustion of administrative remedies by two

plaintiffs); Chimenti v. Wetzel, No. 15-333, 2018 WL 2388665, at *5 (E.D. Pa. May 24, 2018)

(agreeing with the Eleventh Circuit’s reasoning in Chandler); Scott v. Clarke, 64 F. Supp. 3d 813,

832 n.10 (W.D. Va. 2014) (concluding that the efforts of the named plaintiffs and several other

class members, who fully exhausted their prison medical grievances, “easily support[ed] a finding

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of PLRA exhaustion on behalf of the entire class” under the principle of vicarious exhaustion);

Butler v. Suffolk County, 289 F.R.D. 80, 97 (E.D.N.Y. 2013) (finding the PLRA’s exhaustion

requirement satisfied as to the entire class where the class representatives exhausted their

administrative remedies as to allegedly unconstitutional conditions).

In this case, however, Plaintiffs are not proceeding as a class because they did not seek

class certification under Rule 23. The Tenth Circuit and numerous district courts that have

addressed PLRA exhaustion by plaintiffs not proceeding as a class have found that vicarious

exhaustion cannot be applied in such situations and exhaustion of administrative remedies by one

prisoner does not meet the exhaustion requirement for all the plaintiffs. See McGoldrick v.

Werholtz, 185 F. App’x 741, 743-44 (10th Cir. June 22, 2006) (“vicarious exhaustion” cannot be

applied when plaintiffs are not certified as a class); see also, e.g., McFadden v. Fuller, No. 2:13-

2290-JMC, 2013 WL 6182365, at *3 (D.S.C. Nov. 22, 2013) (noting that the PLRA requires that

each plaintiff meet the exhaustion requirement in action where prisoners join as plaintiffs and

distinguishing case where exhaustion was not required because the plaintiffs were certified as a

class); Jones v. Corzine, No. 09-4406 (JLL), 2010 WL 1948352, at *11 n.12 (D.N.J. May 14, 2010)

(“Exhaustion of administrative remedies by one prisoner does not meet the exhaustion requirement

for multiple prisoner plaintiffs seeking to join in one action[.]”); Lilly v. Ozmint, No. 2:07-01932-

JF, 2007 WL 2022190, at *2 (D.S.C. July 11, 2007); Worthen v. Oklahoma Dept. of Corrections,

No. CIV-07-687-R, 2007 WL 4563665, at *3 (W.D. Okla. Dec. 7, 2007), report and

recommendation adopted in pertinent part by 2007 WL 4563644 (W.D. Okla. Dec. 20, 2007); Ray

v. Evercom Systems, Inc., No. 4:05-2904-RBH, 2006 WL 2475264, at *5 (D.S.C. Aug. 25, 2006).

17

Even though all Plaintiffs in this action are similarly situated and the remaining claims are

identical as to each of them, and despite the purported purpose and goals behind PLRA’s

exhaustion requirement being satisfied here through the exhaustion of administrative remedies by

Plaintiffs Hall and Rush, the PLRA is clear that its mandatory exhaustion requirement applies to

all prisoners. The Court therefore declines to extend the applicability of the vicarious exhaustion

exception to this case given its absence of class certification. Additionally, to the extent any such

argument is being raised by the Plaintiffs, the Court rejects recognizing a futility exception to

exhaustion in this case since such exception has been explicitly rejected by the Third Circuit. See

Ahmed v. Dragovich, 297 F.3d 201, 206 (3d Cir. 2002) (citing Nyhuis v. Reno, 204 F.3d 65, 78 (3d

Cir. 2000)).

The second argument raised by Plaintiffs concerns the applicability of Perttu, 605 U.S.

460, a case where the Supreme Court addressed whether an inmate had a right to a jury trial on

PLRA exhaustion when the question was intertwined with the merits of the underlying claim. See

ECF No. 202. There, a prisoner sued a prison employee “for violating his constitutional rights,

including his First Amendment right to file grievances.” Perttu, 605 U.S. at 464. The plaintiff

alleged that when “he tried to file grievance forms” reporting the defendant’s alleged sexual abuse,

the defendant “destroyed them and threatened to kill him if he filed more.” Id. The parties in

Perttu agreed that “the exhaustion and First Amendment issues [were] intertwined, because both

depend[ed] on whether [the defendant] did in fact destroy [the plaintiff]’s grievances and retaliate

against him.” Id. Against that backdrop, the Supreme Court held “that parties have a right to a

jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim that falls

under the Seventh Amendment.” Id. at 468.

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While Plaintiffs here argue that exhaustion of administrative remedies in this case may be

a question of fact for the jury to decide, the Court finds that Perttu is not applicable to this case

given that exhaustion is not intertwined with the merits of the remaining claims.

Because there is simply no genuine dispute of material fact as to whether all Plaintiffs other

than Plaintiffs Hall and Rush properly exhausted their administrative remedies, summary judgment

must be granted in favor of Defendants against all Plaintiffs, including pro se Plaintiff Anderson,

except for Plaintiffs Hall and Rush.

2. Procedural due process

Plaintiffs assert that they were denied their right to procedural due process under the

Fourteenth Amendment when Defendants confined them “to near solitary confinement without

basis and without presenting Plaintiffs an opportunity to challenge the confinement.” ECF No.

104 ¶ 56.

The Fourteenth Amendment to the United States Constitution provides that “[n]o State

shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const.,

Amdt. 14, § 1. In analyzing any procedural due process claim under the Fourteenth Amendment,

the first step is to determine “whether the asserted individual interests are encompassed within the

. . . protection of ‘life, liberty or property[,]’” and, if so, the second step is to determine “what

procedures constitute ‘due process of law.’” Ingraham v. Wright, 430 U.S. 651, 672 (1977). If

there is no protected liberty or property interest, it is unnecessary to analyze what procedures were

followed when an alleged deprivation occurred.

The parties dispute whether the Plaintiffs’ claim implicates a legally cognizable protected

liberty interest. “A liberty interest may arise from the Constitution itself, by reason of guarantees

19

implicit in the word ‘liberty,’ or it may arise from an expectation or interest created by state laws

or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (internal citations omitted). Plaintiffs

in this case maintain that they were deprived of a state-created liberty interest.10

Procedural due process protection “for a state created liberty interest . . . is limited to those

situations where deprivation of that interest ‘imposes atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.’” Griffin v. Vaughn, 112 F.3d 703, 706

(3d Cir. 1997) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). No liberty interest is

implicated where the state action does not “present a dramatic departure from the basic conditions

of confinement.” Sandin, 515 U.S. at 484. The court therefore must “compare the prisoner’s

liberties after the alleged deprivation with the normal incidents of prison life.” See Sandin, 515

U.S. at 485-86. In determining what is atypical or significant, the relevant comparator is the

general population. Williams v. Secretary Pennsylvania Department of Corrections, 848 F.3d 549,

564 (3d Cir. 2017).

Sandin controls the disposition of the Plaintiffs’ procedural due process claim here.

Plaintiffs argue that the restrictions placed upon them as unvaccinated inmates in response to the

DOC’s segregation policy were atypical to the ordinary incidents of life at SCI-Forest and atypical

to the prison life of vaccinated inmates. They argue that for approximately eight months they were

10 Defendants argue that the Plaintiffs’ claim does not implicate a liberty interest directly under

the Constitution itself. See ECF No. 169 at 5-6. It is unclear whether Plaintiffs concede this point,

but they focus their briefing on the state-created liberty interest. To the extent they make an

argument that they were deprived of a protected liberty interest directly under the Constitution

itself, the Court finds that they were not because the record demonstrates that the conditions to

which they were subjected did not exceed the sentences imposed on them. See Sandin v. Connor,

515 U.S. 472, 480 (1995) (“The Due Process Clause standing alone confers no liberty interest in

freedom from state action taken ‘within the sentence imposed.’”) (quoting Hewitt v. Helms, 459

U.S. 460, 468 (1983) (internal quotation omitted)).

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subjected to segregation that put significant restrictions on their movement and curtailed their

activities at SCI-Forest, restrictions which are detailed in the factual background section of this

Opinion, and that despite the reason given for their segregation as being to “minimize the risk of

exposure” to Covid-19, no similar segregation policy was instituted for staff members who were

allowed to work on both units and visitors were not required to provide proof of vaccination status

when visiting vaccinated inmates. See ECF No. 196 at 16-19

The inquiry as to what is atypical or significant is “fact-specific.” Mitchell v. Horn, 318

F.3d 523, 532 (3d Cir. 2003). Considering the conditions set forth in the factual background

section of this Opinion, the Court does not find there to be a dispute as to any material fact

regarding whether the conditions faced here by the unvaccinated Plaintiffs for roughly eight

months were “significantly more restrictive” in comparison to the conditions in the vaccinated

general population unit, and therefore the Plaintiffs’ confinement in the unit for the time that the

DOC’s policy was in place did not present the type of “atypical” or “significant” deprivation as

envisioned under Sandin. See, e.g., Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000). The

differences in conditions the unvaccinated inmates faced during this time, without more, appear

constitutionally insignificant. The unvaccinated inmates were still permitted access to the yard,

law library, religious activities, and programming and services, albeit not with vaccinated inmates,

and, although not permitted in-person visitation, they were permitted daily phone access and

increased video visits. They were also permitted to keep working, so long as they worked on GA

unit, and they nevertheless received their regular pay if their ability to work was impacted by the

21

segregation policy.11 Although there appear to be disputes in the record as to whether they were

permitted access to certain services and activities in the same amount of time as their vaccinated

counterparts, the question in this procedural due process claim is not whether they were treated

differently at all but whether the conditions of their confinement were considered to be

“significantly more restrictive” than those imposed on vaccinated inmates during the time the

policy was in place. See Shoats, 213 F.3d at 144. The evidentiary record suggests that their

conditions of confinement did not impose an atypical or significant hardship on them in relation

to the ordinary incidents of prison life and the disputes of fact noted by the parties are not material

in reaching this conclusion.

Furthermore, to the extent Plaintiffs focus their argument on the open-ended indefinite

duration of their segregated confinement at the time the policy was issued, this indefinite duration

is not sufficient in and of itself to create a liberty interest. Clark v. Beard, 918 A.2d 155, 164 (Pa.

Cmwlth. 2007) (indefinite duration must be coupled with other factors in order to establish a liberty

interest) (citing Wilkinson v. Austin, 545 U.S. 209 (2005)). And, in any event, an unvaccinated

inmate could request a transfer to the vaccinated unit at any time if he received the vaccine.

Nevertheless, the record demonstrates that the process they received was constitutionally

sufficient. “The essential requirements of any procedural due process claim are notice and the

opportunity to be heard.” Zappan v. Pennsylvania Board of Probation and Parole, 152 F. App’x

211, 220 (3d Cir. Oct. 26, 2005). Prior to the implementation of the DOC’s segregation policy,

11 It is noted that there is a dispute as to whether the Represented Plaintiffs were “denied

employment” as a result of the policy, but according to Gregory Miller, the Unit Manager for GA

unit during the time period at issue, Plaintiffs Hall and Rush, the only two inmates to have

exhausted their administrative remedies, both held employment for some or all of the time period

the DOC’s segregation policy was in place. ECF No. 170 ¶ 67; ECF No. 195 ¶ 67.

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unvaccinated inmates were informed that they would be transferred into a different unit and have

more restrictions placed on their movement if they elected to not receive the vaccine. Hence, they

were notified of the reason for their transfer, and they were given an opportunity to receive the

vaccine before their transfer, or at any time during their confinement, in which case they could

request to be moved to the vaccinated unit. The unvaccinated inmates also had the opportunity to

file a grievance via the inmate grievance system. See, e.g., Kanu v. Lindsey, 739 F. App’x 111,

117 (3d Cir. 2018) (noting in a case involving a pretrial detainee’s placement in administrative

segregation that “the opportunity to respond” for procedural due process purposes, “can be

satisfied by written grievances[.]”) (citing Hewitt v. Helms, 459 U.S. 460, 476 (1983)).

This Court agrees with its’ sister court, the Eastern District of Pennsylvania, that found that

this same process, which was afforded to the unvaccinated Pennsylvania DOC prisoner in Williams

v. Sorber, No. 23-CV-2982, 2024 WL 2111935 (E.D. Pa. May 10, 2024), was “sufficient to

account for the interests at stake under the circumstances because the prison had an interest in

preventing the spread of Covid and keeping inmates safe, and inmates were given the opportunity

to either take the vaccine or, if they could not do so, accept more restrictive housing.” Id. at *8.

The Eastern District also noted that it was “unclear what additional process under the

circumstances would have accomplished.” Id.

Plaintiffs here do not specify what process, in addition to what they were given, they were

allegedly due. The Supreme Court has stated that “[d]ue process is flexible and calls for such

procedural protections as the particular situation demands.” Marrissey v. Brewer, 404 U.S. 471,

481 (1972). Its flexibility is “recognition that not all situations calling for procedural safeguards

call for the same kind of procedure.” Id.

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Whether the procedures that were provided here were constitutionally sufficient requires

an analysis of both the governmental and private interests that were affected. See Mathews v.

Eldridge, 424 U.S. 319, 334 (1976). Taking into account both the interests of the unvaccinated

Plaintiffs who were forced to choose between receiving a vaccine that they did not want or be

subjected to heightened housing and movement restrictions, and the interests of the Defendants in

preventing the spread of the Covid-19 virus in a communal setting at a time when the virus was

still relatively new and its more contagious variants were spreading rapidly,12 this Court agrees

with the Eastern District of Pennsylvania that the process required for the transfer of unvaccinated

inmates into the unvaccinated unit, which carried more restrictions, should not have been

extensive. See Williams, 2024 WL 2111935 at *8. Indeed, this Court agrees that a process similar

to that which is required for transfers of pretrial detainees into administrative custody, which

requires only an explanation of the reason for their transfer as well as an opportunity to respond,

is sufficient. Id. (citing Stevenson v. Carroll, 495 F.3d 62, 70 (3d Cir. 2007)).

For the reasons explained, the Court finds that Defendants are entitled to summary

judgment on Plaintiffs’ due process claim.

3. Prospective injunctive relief

Plaintiffs seek an injunction to enjoin the named officials from enforcing their policies and

practices of segregating vaccinated inmates from unvaccinated inmates and imposing heightened

12 This Court has stated that “the list of relevant considerations for [prison] authorities” attempting

to control the spread of the Covid-19 virus “is long” and “the Court cannot second guess where

authorities move those who test positive, those who refuse to be vaccinated, those who are more

vulnerable to serious complications should they contract Covid-19, and those who recover from

Covid-19.” Jones v. County of Allegheny, No. 21-1094, 2022 WL 2806779, at *7 (W.D. Pa. June

24, 2022), report and recommendation adopted by, 2022 WL 2803111 (W.D. July 18, 2022).

24

restrictions upon them. Defendants argue that Plaintiffs’ request for injunctive relief is moot given

that the pandemic conditions we faced are no longer extant and at this time no Plaintiff is

incarcerated in the segregated unvaccinated unit and has not been for nearly three years. ECF No.

169 at 14-16. In response, Plaintiffs argue that this case presents an exception to the mootness

doctrine because it is a question “capable of repetition yet evading review.” ECF No. 196 at 19.

It is a well-established principle that federal courts do not have jurisdiction to decide an

issue unless it presents a live case or controversy as required by Article III, § 2, of the Constitution.

Spencer v. Kemna, 523 U.S. 1, 7 (1998). “This case-or-controversy requirement subsists through

all stages of federal judicial proceedings, trial and appellate . . . the parties must continue to have

a personal stake in the outcome of the lawsuit.” Lewis v. Continental Bank Corp., 494 U.S. 472,

477-78 (1990) (internal citations and quotations omitted). See also Steffel v. Thompson, 415 U.S.

452, 459 (1974) (the adjudicatory power of a federal court depends upon “the continuing existence

of a live and actual controversy”) (emphasis in original). “Past exposure to illegal conduct is

insufficient to sustain a present case or controversy . . . if unaccompanied by continuing, present

adverse effects.” Rosenberg v. Meese, 622 F.Supp. 1451, 1462 (S.D.N.Y. 1985) (citing O’Shea v.

Littleton, 414 U.S. 488, 495-96 (1974)).

“[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). A court’s

ability to grant effective relief lies at the heart of the mootness doctrine. County of Morris v.

Nationalist Mvmt., 273 F.3d 527, 533 (3d Cir. 2001); see also In re Material Witness Warrant

Nichols, 77 F.3d 1277, 1279 (10th Cir. 1996) (noting that mootness means that it would be

impossible to grant the petitioner any meaningful relief on his claims). Thus, “[i]f developments

25

occur during the course of adjudication that eliminate a plaintiff’s personal stake in the outcome

of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed

as moot.” Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996).

An identified narrow exception to the mootness doctrine is when the “dispute is of such a

nature that it is capable of repetition yet evading review.” Marshall v. Whittaker Corp., Berwick

Forge & Fabricating Co., 610 F.2d 1141, 1144 (3d Cir. 1979). This doctrine is limited to cases

where “(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.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975).

In this situation, the burden of showing the issue is “capable of repetition” rests with the party

opposing mootness. County of Butler v. Governor of Pennsylvania, 8 F.4 226, 231 (3d Cir. 2021).

Another identified narrow exception to the mootness doctrine is referred to as “voluntary

cessation,” and occurs when a defendant argues mootness because of some action it took

unilaterally after the litigation began. Hartnett v. Pennsylvania State Education Association, 963

F.3d 301, 306 (3d Cir. 2020). This “will moot a case only if it is ‘absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur.’” Fields v. Speaker of the Pa. House

of Representatives, 936 F.3d 142, 161 (3d Cir. 2019) (quoting Parents Involved in Cmty. Sch. v.

Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007)). In this situation, the “heavy burden of

persuading the court that the challenged conduct cannot reasonably be expected to start up again

lies with the party asserting mootness.” Friends of the Earth, Inc. v. Laidlaw Environmental

Services (TOC), Inc., 528 U.S. 167, 189 (2000) (internal citations omitted). In their briefs, the

parties understandably appear to conflate the standards involved for both of these doctrines.

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However, the “capable of repetition yet evading review” exception “applies only in exceptional

situations” and seemingly only when “the plaintiff’s alleged injury has disappeared through no

action of the defendant.” Sczesny v. Murphy, 2025 WL 816153, at *3 n.5 (3d Cir. Mar. 14, 2025)

(citing Clark v. Governor of New Jersey, 53 F. 769, 784 (3d Cir. 2022) (Matey, J., dissenting).

Because the restrictions placed on the Plaintiffs in this case ended when the DOC lifted its policy

in 2022, it appears that the voluntary cessation doctrine is the more applicable doctrine to apply

here. However, it is noted that both exceptions “test[] whether there is a reasonable expectation

the challenged behavior will recur.” Stepien v. Governor of New Jersey, 2023 WL 2808460, at *3

(3d Cir. Apr. 6, 2023).

In Clark v. Governor of New Jersey, 53 F.4th 769 (3d Cir. 2022), a case to which both

parties cite in support of their position, the Third Circuit addressed whether an action brought

against New Jersey’s Governor and other state officials challenging executive and administrative

orders restricting indoor gatherings in response to the Covid-19 pandemic was moot. The

challenged executive and administrative orders were rescinded by the governor before the case

was resolved, but the plaintiffs argued that the case remained justiciable under the voluntary

cessation doctrine and that the State had failed to meet its burden of showing that it was absolutely

clear a return to restrictions was not reasonably likely. Id. at 777. In relevant part, the Third

Circuit noted that “mootness concerns itself with whether the same legal controversy will recur.”

Id. at 777-78. In Clark, it defined the “controversy” as “(1) whether the same precise situation –

the pandemic such as it presented itself in 2020 and 2021 – will occur again; and (2) whether the

Governor will respond to that situation by imposing restrictions similar enough to those he

27

imposed in 2020 and 2021[.]” Id. at 778. It then concluded that it was “absolutely clear that

neither of those aspects are reasonably likely to recur.” Id.

Relevant to the mootness question here the Court asks a similar question. Will “the

pandemic as it presented itself in 2020 and 2021 . . . occur again,” and will the DOC respond to

that situation “by imposing restrictions similar enough” to those it imposed on unvaccinated

inmates at that time. Id. This Court “need not conclude it is likely that the exact same restrictions”

at issue here will return, but it is not enough to show “any future COVID-related restrictions” on

Plaintiffs. Id. at 777. Instead, the restriction must be “‘similar’ enough to the [original restriction]

to present substantially the same legal controversy as the one presented” here. Id. As the party

claiming mootness here, Defendants bear the burden of “demonstrating that it [is] absolutely clear

that there [is] no reasonable likelihood of reoccurrence.” Id. at 776 (citing Hartnett, 963 F.3d at

307).

While Plaintiffs concede that “a global pandemic that demands lockdowns identical to

Covid-19 may not ultimately reoccur,” they argue that there is a reasonable likelihood that the

restrictions placed upon Plaintiffs will reoccur in the event of another public health crisis and be

“similar enough” to the Covid-19 restrictions to present “substantially the same legal controversy.”

ECF No. 196 at 20-21. In other words, they maintain that “absent the relief sought by Plaintiffs .

. . the [DOC] would have carte blanche authority to reinstitute mandated segregation of inmates

and/or restrictions on an inmates’ daily schedule based upon vaccination status, without exception

or exemption.” Id. at 21. Defendants do not argue or in any way suggest that if this case is resolved

in their favor that they will not reimpose the same or similar restrictions on prisoners in the event

of another outbreak. Indeed, they admit that “it is impossible to definitely assert that no future

28

global health crisis might necessitate alterations to DOC housing policy akin to the segregated unit

while any named plaintiff remains in DOC custody[.]” ECF No. 169 at 16. However, they note

that “such slender possibility hardly clears the requisite bar of ‘likely to suffer future injury.’” Id.

Plaintiffs emphasize the probability of a speculative future pandemic or health crisis in

their argument, but in answering the mootness question this Court must look to the likelihood of

the “same precise situation” recurring. Clark, 53 F.4th at 777-78 (“mootness concerns itself with

whether the same legal controversy will recur[,]” which determination involves answering

“whether the same precise situation” will occur again); see also Sczesny, 2025 WL 816153, at *3

(“Even assuming a reasonable likelihood that [Governor] Murphy will instate some COVID-based

vaccination-policy requirement for healthcare facilities in the future, a challenge to that future

requirement would not plausibly present “the same legal controversy as the one before us now.”)

(citing Clark, 53 F.4th at 781) (emphasis in original)). Any speculative public health crisis, and

the fact that the DOC may respond with precautionary measures, including placing certain

restrictions on inmates’ schedules and housing conditions, “cannot itself be enough to skirt

mootness, because then no suit against the government would ever be moot.” Brach v. Newsom,

38 F.4th 6, 14 (9th Cir. 2022) (quoting Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 10 (1st Cir. 2021).

In addressing the likelihood of the pandemic recurring in Clark, the Third Circuit found that it was

“absolutely clear” that the pandemic as it presented itself in 2020 and 2021 is not reasonably likely

to recur. Clark, 53 F.4th at 778. It explained,

[I]t is hard to imagine that we could once again face anything quite like what

confronted us then. Moreover, the public health outlook has changed dramatically

since the dark days of March 2020 . . . . Our knowledge of the virus and its vectors

of transmission, the rollout of vaccines, and the availability of therapeutic responses

to infection have totally changed the nature of the disease itself, our understanding

29

of it, and our response to it. The accumulation of those changed circumstances thus

make the return of the same pandemic and the same restrictions unlikely.

Id. In finding that it was unlikely that the Governor of New Jersey would reimpose masking

restrictions in Stepien, the Third Circuit reiterated its holding in Clark and stated that “[p]ublic

health conditions have changed dramatically since the dawn of the pandemic. Infection rates are

down, vaccination rates are up, and officials have more arrows in their quiver to mitigate and treat

COVID-19.” 2023 WL 2808460 at *3. Furthermore, in the prison context, the Third Circuit

extended their holding in Clark to habeas appeals involving requests for release from state custody

in light of the Covid-19 pandemic and stated that it is “unlikely” that prisoners will again face “the

same pandemic conditions [] faced in 2020-21[.]” Kehoe v. Superintendent Huntingdon SCI, 2023

WL 10554368, at *1 (3d Cir. Nov. 17, 2023); see also Quevi v. Superintendent Huntingdon SCI,

2023 WL 11051221, at *1 (3d Cir. Nov. 16, 2023); Valdez v. Superintendent Huntingdon SCI,

2023 WL 11197743, at *1 (3d Cir. Nov. 16, 2023).

Given the change in circumstances since the early days of the pandemic, and the fact that

the Third Circuit has repeatedly found that cases challenging rescinded or lifted policies and

restrictions that were imposed in response to those early days are now moot, the Court is compelled

to find that the Plaintiffs’ claim for injunctive relief in this case is also moot. A challenge to any

speculative future restriction based on a speculative future global health crisis simply does not

plausibly present the same legal controversy as the one before the Court now. As such, Defendants

are entitled to summary judgment on this claim.

4. Defendant Irwin’s personal involvement

Defendants also move for summary judgment on the basis that Defendant Irwin lacked any

personal involvement in the challenged conduct at issue because he did not arrive at SCI-Forest

30

until June 2022, after the segregation of vaccinated and unvaccinated inmates ended, and because

he did not have any role in implementing or enforcing the Covid-19 segregation policy at SCI-

Forest. Given that Defendants are entitled to summary judgment on Plaintiffs’ remaining claims

as discussed above, the Court declines to address this final argument.

A separate Order will be entered.

Dated: September 22, 2025.

/s/ Arthur J. Schwab

Arthur J. Schwab

United States District Judge

Cc: All counsel of record

(via CM/ECF electronic mail)

Randy Anderson

LY1600

SCI Forest

P.O. Box 307

286 Woodland Dr.

Marienville, PA 16239

31