Steven Daurio v. Mike Faust

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 16, 2023
• Docket: 22-15248
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

STEVEN LOUIS DAURIO, No. 22-15248

Plaintiff-Appellant, D.C. No. 2:18-cv-03299-GMS

v. MEMORANDUM* MIKE FAUST, Director of the Department of Child Safety,

Defendant-Appellee,

and

ARIZONA DEPARTMENT OF CHILD SAFETY; GREG MCKAY; ELIZABETH A. REYNOLDS; JENNIFER PASSMORE; PAULA CARGILL; UNKNOWN PARTIES,

Defendants.

Appeal from the United States District Court for the District of Arizona G. Murray Snow, Chief District Judge, Presiding

Submitted October 16, 2023**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: O’SCANNLAIN, FERNANDEZ, and SILVERMAN, Circuit Judges.

Daurio appeals from three district court orders. The first granted summary

judgment to the Defendants for three claims barred by qualified immunity; the

second held that Daurio lacked standing to pursue injunctive relief; and the third

denied Daurio’s motion to alter or amend the summary judgment order. Because

the facts are known to the parties, we repeat them only as necessary to explain our

decision.

I

An order remanding a case to state court after removal for lack of subject

matter jurisdiction is “not reviewable on appeal.” 28 U.S.C. § 1447(d). The

district court colorably characterized its remand for lack of standing as a remand

for lack of subject matter jurisdiction. See Powerex Corp. v. Reliant Energy

Servs., Inc., 551 U.S. 224, 234 (2007); Nat’l Org. for Women, Inc. v. Scheidler,

510 U.S. 249, 255 (1994). We do not have jurisdiction to reconsider the district

court order determining that Daurio lacked standing and remanding the case to

state court. The appeal is dismissed as to that order.

II

The district court properly determined that some of Daurio’s claims were

barred by qualified immunity, because Daurio failed to come forward with any

precedent to show that the rights allegedly violated were clearly established at the

2 time of the alleged misconduct. See Shooter v. Arizona, 4 F.4th 955, 961 (9th Cir.

2021) (citing Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991)).

III

A district court may reconsider its judgment for newly discovered evidence,

clear error or manifest injustice, or an intervening change in controlling law. Sch.

Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). In his motion to

alter or to amend the judgment, Daurio did not argue that any of those grounds for

reconsideration applied. The district court did not abuse its discretion by denying

the motion.

AFFIRMED in part and DISMISSED in part.