840 F2d 19 Whitney v. Brown

840 F.2d 19

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

No. 87-1451.

United States Court of Appeals, Sixth Circuit.

Feb. 16, 1988.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before KEITH, WELLFORD and DAVID A. NELSON, Circuit Judges.

ORDER


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1

This matter is before the court upon consideration of the plaintiffs-appellees' motion to dismiss the defendants-appellants' appeal from the district court's April 15, 1987, order. That order permitted Jewish inmates at the State Prison of Southern Michigan to celebrate the Passover Seder in the central complex of the institution on April 19, 1987. The defendants-appellants have failed to respond to the motion to dismiss.

2

A review of the record indicates that the defendants-appellants appealed a similar order in 1986 (appeal number 86-1394). That appeal was dismissed by this court on August 12, 1986, because the appeal did not satisfy the case or controversy requirement.

3

The instant appeal presents the same situation that this court previously considered in August of 1986. The Passover Seder to which the appealed order applied was held on April 19, 1987. No "case or controversy" exists. Roe v. Wade, 410 U.S. 113, reh'g denied, 410 U.S. 959 (1973); Rettig v. Kent City School Dist., 788 F.2d 328, 330 (6th Cir.), cert. denied, 92 L.Ed.2d 711 (1986). The court further concludes that the appeal does not present the exceptional situation where an issue is "capable of repetition, yet evading review." Id.; Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515 (1911).

4

It is ORDERED that the motion to dismiss be granted.