OpenJurist

802 F2d 461 Harry Whitney v. Robert Brown

802 F.2d 461

Harry Whitney, John Barnes, Michael Smith, and Mark Ernest,
Plaintiffs-Appellees
v.
Robert Brown, Director of Michigan Department of
Corrections, Dale Foltz, Warden of Michigan State
Prison, Defendants-Appellants.

No. 86-1394.

United States Court of Appeals, Sixth Circuit.

Aug. 12, 1986.

BEFORE: ENGEL, JONES and RYAN, Circuit Judges

ORDER

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

Plaintiffs-appellees move to dismiss defendants-appellants' appeal of the district court's orders of April 17, 1986 and April 23, 1986 which permitted Jewish inmates at the State Prison of Southern Michigan to celebrate the Passover Seder in one facility of the defendants' choice. Defendants-appellants filed a memorandum in opposition.

2

Since the Passover Seder was held April 27, 1986, the Court concludes that the appeal no longer presents a "case or controversy." To satisfy the "case or controversy" requirement, an actual controversy must exist at all stages of appellate or certiorari review, and not simply on the date the action is initiated. Roe v. Wade, 410 U.S. 113, reh'g denied, 410 U.S. 959 (1973); Rettig v. Kent City School District, 788 F.2d 328, 330 (6th Cir. 1986). The Court further concludes that the appeal does not present the exceptional situation where an issue is "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498, 515 (1911).

3

It is ORDERED that the motion to dismiss is granted.