Mark A. Koch v. Dora B. Schriro, Director, Director of the Arizona Department of Corrections Terry L. Stewart, Director, Former Director of the Arizona Department of Corrections George Herman, Former Warden Denny Harkins, Former Deputy Warden, Mark A. Koch v. Dora B. Schriro, Director, Director of the Arizona Department of Corrections Terry L. Stewart, Director, Former Director of the Arizona Department of Corrections George Herman, Former Warden Denny Harkins, Former Deputy Warden

399 F.3d 1099

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 2, 2005
• Docket: 03-16968
• Status: Published

Opinion

399 F.3d 1099

Mark A. KOCH, Plaintiff-Appellee,
v.
Dora B. SCHRIRO, Director, Director of the Arizona Department of Corrections; Terry L. Stewart, Director, Former Director of the Arizona Department of Corrections; George Herman, Former Warden; Denny Harkins, Former Deputy Warden, Defendants-Appellants.
Mark A. Koch, Plaintiff-Appellee,
v.
Dora B. Schriro, Director, Director of the Arizona Department of Corrections; Terry L. Stewart, Director, Former Director of the Arizona Department of Corrections; George Herman, Former Warden; Denny Harkins, Former Deputy Warden, Defendants-Appellants.

No. 03-16968.

No. 03-17190.

United States Court of Appeals, Ninth Circuit.

Submitted September 29, 2004.*

Filed March 2, 2005.

James R. Morrow, Daniel P. Schaack, Assistant Attorneys General, Phoenix, AZ, for the appellants.

Larry A. Hammond, Timothy J. Eckstein, Daniel J. Pochoda, Phoenix, AZ, for the appellee.

Appeal from the United States District Court for the District of Arizona; James B. Moran, Senior Judge, Presiding. D.C. No. CV-90-01872-JBM.

Before B. FLETCHER, RAWLINSON, and CLIFTON, Circuit Judges.

ORDER

In Koch v. Ryan, 335 F.3d 993 (9th Cir.2003), we dismissed the consolidated appeals of Koch v. Lewis, 216 F.Supp.2d 994 (D.Ariz.2001) and Koch v. Lewis, 2001 WL 1944737 (D.Ariz. Dec.17, 2001) because Koch's release from prison rendered the consolidated appeals moot.

We remanded the matter to the district court pursuant to Dilley v. Gunn, 64 F.3d 1365, 1372-73 (9th Cir.1995) for "the district court to determine whether its rulings should be vacated." The district court vacated the injunctive relief granted in its prior orders, but preserved the viability of its "prior legal conclusions" for future "persuasive force."

In Dilley, we held that if the event that moots the case "occurred by happenstance, then automatic vacatur is appropriate under Munsingwear." See Dilley, 64 F.3d at 1372. Because Koch's parole "occurred by happenstance," rather than through any conduct initiated by the parties in the context of the case, we VACATE the orders entered in Koch, 216 F.Supp.2d 994; Koch, 2001 WL 1944737; and Koch v. Lewis, 96 F.Supp.2d 949 (D.Ariz.2000) in their entirety.

This order does not affect any request for attorney's fees.

Notes:

* The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2)