Hrdlicka

Before: STEPHEN REINHARDT, WILLIAM A. FLETCHER and N. RANDY SMITH, Circuit Judges.

Order; Concurrence by Judge REINHARDT and Judge WILLIAM A. FLETCHER; Dissent by Judge O'SCANNLAIN.

Judge Reinhardt and Judge W. Fletcher have voted to deny the Appellees' petitions for rehearing and petitions for rehearing en banc, filed on February 15, 2011 and February 23, 2011. Judge N.R. Smith voted to grant both.

A judge of the court called for a vote on the petitions 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).

The petitions for rehearing and the petitions for rehearing en banc are DENIED.

REINHARDT and W. FLETCHER, Circuit Judges, concurring in the denial of rehearing en banc:

The question presented in this case is straightforward: Does the four-factor test of Turner v. Safley, 482 U.S. 78 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987), apply to distribution of a magazine to county jail inmates who have not requested it? A majority of the three-judge panel concluded that Turner does apply. An en banc call failed to receive a majority vote of the active judges of our court.

The Turner test…

concurring in the denial of rehearing en banc:

The question presented in this case is straightforward: Does the four-factor test of Turner v. Safley, 482 U.S. 78 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987), apply to distribution of a magazine to county jail inmates who have not requested it? A majority of the three-judge panel concluded that Turner does apply. An en banc call failed to receive a majority vote of the active judges of our court.

The Turner test evaluates the reasonableness of a prison regulation impinging on a constitutional right. .We have applied Turner in a number of cases to evaluate the reasonableness of regulations banning the distribution of mail. In Crofton v. Roe, 170 F.3d 957 (9th Cir.1999), we applied Turner to evaluate a regulation prohibiting an inmate from receiving a gift book from his stepfather. In Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir.2001), we applied Turner to evaluate a regulation banning distribution of bulk-rate mail to which prisoners had subscribed. In Morrison v. Hall, 261 F.3d 896 (9th Cir.2001), we applied Turner to evaluate a regulation banning distribution of “pre-paid, for-profit, subscription publications.” In Prison Legal…

Order; Concurrence by Judge REINHARDT and Judge WILLIAM A. FLETCHER; Dissent by Judge O’SCANNLAIN.

ORDER

Judge Reinhardt and Judge W. Fletcher have voted to deny the Appellees’ petitions for rehearing and petitions for rehearing en banc, filed on February 15, 2011 and February 23, 2011. Judge N.R. Smith voted to grant both.

A judge of the court called for a vote on the petitions for rehearing en banc. A vote was taken, and a majority of the *943 active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f).

The petitions for rehearing and the petitions for rehearing en banc are DENIED.