Butler v. Russell

FILED: July 6, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

SAGE BRUCE BUTLER,

Appellant,

v.

LT. JAMIE RUSSELL,
Acting Commander,
Lincoln County Jail;
and DENNIS DOTSON,
Lincoln County Sheriff,

Respondents.

03-5104; A123998

Appeal from Circuit Court, Lincoln County.

Robert J. Huckleberry, Judge.

Argued and submitted June 2, 2005.

Steven H. Gorham argued the cause and filed the brief for appellant.

Rob Bovett, Assistant County Counsel, argued the cause and filed the brief for respondents.

Before Wollheim, Presiding Judge, and Edmonds* and Schuman, Judges.

PER CURIAM

Appeal dismissed as moot.

*Edmonds, J., vice Richardson, S. J.

PER CURIAM

Plaintiff, who when he filed this case was an inmate of the Lincoln County Jail, appeals from the trial court's dismissal of a writ of habeas corpus in which plaintiff, an enrolled member of the Siletz Tribe and a participant in the Native American religion, challenges the jail policy denying him possession of a ceremonial eagle feather that he uses for religious purposes. He argues, among other things, that he would be entitled to possess the feather under the policies that the Department of Corrections follows in state prisons.

After the trial in this case, plaintiff was transferred to the custody of the Department of Corrections. Although a transfer of physical custody does not in itself divest a court of jurisdiction under a writ of habeas corpus, Anderson v. Britton, 212 Or 1, 5, 318 P2d 291 (1957), cert den, 356 US 962 (1958); McGee v. Johnson, 161 Or App 384, 984 P2d 341 (1999), a change in custody may render a plaintiff's claims moot. McGee v. Baldwin, 183 Or App 1, 3-4, 51 P3d 614 (2002), rev den, 335 Or 195 (2003). Petitioner is now in the custody of the Department of Corrections, whose policies are consistent with those that he argues the Lincoln County Jail should have applied. A decision on his claims, thus, would have no practical effect on his situation, and the case is therefore moot.

Appeal dismissed as moot.