Gaston

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY (TONY) GASTON,  No. 01-56367 Petitioner-Appellant, D.C. No. v. CV-00-06612- ANNA RAMIREZ PALMER, NM(Mc) Respondent-Appellee. Central District of California,  Los Angeles

ORDER

WITHDRAWING

OPINION AND

DENYING THE

PETITION FOR

REHEARING

 EN BANC

Filed August 2, 2005

Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and William A. Fletcher, Circuit Judges.

Order; Dissent by Judge O’Scannlain

ORDER

This court’s opinion filed October 28, 2004 is hereby with- drawn and replaced with the attached Opinion. With the filing of the new opinion, the petition for rehearing en banc filed November 12, 2004 is DENIED. Judge Kleinfeld would grant it. 8879 8880 GASTON v. PALMER A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R. App. P. 35(f).

We defer decision on the petition for rehearing by the panel until after the Supreme Court has rendered…