Phillips

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANK MARVIN PHILLIPS,  No. 04-36021 Plaintiff-Appellee, D.C. No. v. CV-01-01252-ALH LYNN HUST, Library Staff, District of Oregon, Portland Defendant-Appellant.  ORDER DENYING

PETITION FOR

REHEARING AND

PETITION FOR

REHEARING

 EN BANC

Filed September 14, 2007

Before: James R. Browning, Dorothy W. Nelson, and Diarmuid F. O’Scannlain, Circuit Judges.

Order; Dissent by Judge Kozinski

ORDER

Judge Browning and Judge Nelson have voted to deny the petition for rehearing and have recommended denying the petition for rehearing en banc. Judge O’Scannlain has voted to grant the petition for rehearing and petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc, and a judge requested a vote on whether to rehear the matter en banc. The case failed to receive a majority of the

13569 13570 PHILLIPS v. HUST votes of the nonrecused active judges in favor of en banc con- sideration. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing en banc are…