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John VAN GELDERN, Appellant, v. Abelicio CHAVEZ et al., Appellees.

No. 21881.

United States Court of Appeals Ninth Circuit.

April 1, 1968.

John Eshleman Wahl (argued), San Francisco, Cal., John Van Geldern, Cal., in pro. per. for appellant.

Jerome C. Utz (argued), Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen. of California, Deraid E. Granberg, Deputy Atty. Gen., San Francisco, for appellee.

Before MERRILL and BROWNING, Circuit Judges, and JAMESON, District Judge.

PER CURIAM:

Appellant brought suit under the Civil Rights Act seeking release on parole charging that the California Adult Authority arbitrarily refused to grant him parole. The District Court dismissed his action upon the ground that the complaint failed to state a claim. This appeal followed.

After the taking of the appeal appellant was released on parole, rendering moot his claims for injunctive relief and mandamus. His original claim for money damages was relinquished in his amended complaint where he expressly refrained from demanding judgment for such relief. Rule 8(a) (3), Fed.R.Civ.P.

The case has thus been rendered moot. Since this did not result from conduct of appellant and since appellant has thereby been denied review of the District Court judgment, the action itself and not simply the appeal should be dismissed upon this ground in order to preclude the judgment from acting as res judicata upon the issues presented.

Remanded with instructions that judgment be vacated and that the action be dismissed upon the ground that the case has been rendered moot.

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