Koch v. Schriro

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK A. KOCH, 
Plaintiff-Appellee,
v.
DORA B. SCHRIRO, Director,
Director of the Arizona No. 03-16968
Department of Corrections; TERRY
L. STEWART, Director, Former  D.C. No.
Director of the Arizona CV-90-01872-JBM
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 No. 03-17190
Department of Corrections; TERRY
L. STEWART, Director, Former  D.C. No.
CV-90-01872-JBM
Director of the Arizona
ORDER
Department of Corrections;
GEORGE HERMAN, Former Warden;
DENNY HARKINS, Former Deputy
Warden,
Defendants-Appellants.

2393
2394 KOCH v. SCHRIRO
Appeal from the United States District Court
for the District of Arizona
James B. Moran, Senior Judge, Presiding
Submitted September 29, 2004*
San Francisco, California
Filed March 2, 2005
Before: Betty B. Fletcher, Johnnie B. Rawlinson, and
Richard R. Clifton, Circuit Judges.
COUNSEL
James R. Morrow, Daniel P. Schaack, Assistant Attorneys
General, Phoenix, Arizona, for the appellants.
Larry A. Hammond, Timothy J. Eckstein, Daniel J. Pochoda,
Phoenix, Arizona, for the appellee.
ORDER
In Koch v. Ryan, 335 F.3d 993 (9th Cir. 2003), we dis-
missed 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. 2003) for
“the district court to determine whether its rulings should be
vacated.” The district court vacated the injunctive relief
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
KOCH v. SCHRIRO 2395
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 “oc-
curred 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.
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