Samuel Lemaire v. Manfred Maass, Superintendent, Samuel Lemaire v. Manfred Maass, Superintendent

*1447 ORDER

Judge Trott’s majority opinion filed on July 21,1993, and refiled on August 13, 1993 with Judge Noonan’s amended dissent, is, with Judge Beezer’s concurrence, ordered amended as reflected in the attached Amended Opinion. Judge Noonan’s amended dissent filed August 13,1993 continues to apply to Judge Trott’s Amended Opinion.

With the Amended Opinion, Judges Beezer and Trott have voted to deny the petition for rehearing and to reject the' suggestion for rehearing en banc. Judge Noonan has voted to grant the petition for rehearing and to accept the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.RApp.P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en bane is REJECTED.

OPINION

Samuel LeMaire is suing the Superintendent of the Oregon prison in which he is incarcerated. He alleges he has been subjected to practices and conditions that violate his constitutional rights, referring primarily to…

dissenting:

As a preliminary and decisive question, this court should have decided whether the appeal was moot. On May 11,1993 the court was notified by counsel for LeMaire that LeMaire had been transferred to a prison in Nevada. On June 14, 1993 the Superintendent responded to this suggestion by agreeing that on May 1, 1993 LeMaire had been transferred to a Nevada prison. The Superintendent went on to substantially agree that the case was moot. He observed, first, that the case has not been certified as a class action. Second, he noted that it would be inappropriate to remand for such certification since “the physical facilities and the regulatory means for controlling the disruptive inmates have changed.” Third, he noted that whether the conduct complained of would recur turned on whether it was reasonably likely that LeMaire would “once again be placed in disciplinary segregation in Oregon and again be subjected to the practices that he challenged.” It did not seem to the Superintendent reasonably likely that' he would be returned; in his opinion “that possibility is at best uncertain.” Moreover, since there were new rules and a new' segregation facility it was apparent that…

12 F.3d 1444 Samuel LeMAIRE, Petitioner-Appellee, v. Manfred MAASS, Superintendent, Respondent-Appellant. Samuel LeMAIRE, Plaintiff-Appellee, v. Manfred MAASS, Superintendent, Defendant-Appellant. Nos. 91-35249, 91-35557. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 15, 1992. Submission Withdrawn Oct. 28, 1992. Resubmitted June 18, 1993. Opinion July 21, 1993. Amended Aug. 13, 1993. As Amended on Denial of Rehearing and Suggestion for Rehearing En Banc Dec. 23, 1993. Rives Kistler, Asst. Atty. Gen., Salem, OR, for the respondent-defendant-appellant. Spencer M. Neal, Ginsburg, Gomez & Neal, Portland, OR, for petitioner-plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before BEEZER, NOONAN, and TROTT, Circuit Judges.ORDER 1 Judge Trott's majority opinion filed on July 21, 1993, and refiled on August 13, 1993 with Judge Noonan's amended dissent, is, with Judge Beezer's concurrence, ordered amended as reflected in the attached Amended Opinion. Judge Noonan's amended dissent filed August 13, 1993 continues to apply to Judge Trott's Amended Opinion. 2 With the Amended Opinion, Judges Beezer and Trott have voted…